United States v. Dawayne Brown

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 23, 2018 Decided June 15, 2018

No. 15-3056

UNITED STATES OF AMERICA,
APPELLEE

v.

DAWAYNE BROWN, ALSO KNOWN AS GOON,
APPELLANT

Consolidated with 15-3065, 15-3066, 15-3067

Appeals from the United States District Court
for the District of Columbia
(No. 1:13-cr-00203-5)
(No. 1:13-cr-00203-3)
(No. 1:13-cr-00203-6)
(No. 1:13-cr-00203-2)

Christine Pembroke, appointed by the court, argued the
cause and filed the briefs for appellant Dawayne Brown.

Mary E. Davis, appointed by the court, argued the cause
for appellant Marquette Boston. With her on the briefs was
Pleasant S. Brodnax III, appointed by the court.
 2
Barbara E. Kittay, appointed by the court, argued the
cause and filed the briefs for appellant Ira Adona.

Jonathan Zucker, appointed by the court, argued the cause
and filed the briefs for appellant Keith Matthews.

James A. Ewing, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Elizabeth Trosman,
Elizabeth H. Danello, and George P. Eliopoulos, Assistant
U.S. Attorneys.

Before: GARLAND, Chief Judge, and KAVANAUGH and
MILLETT, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge MILLETT.

Opinion dissenting in part filed by Circuit Judge
KAVANAUGH.

PER CURIAM: A jury convicted Dawayne Brown,
Marquette Boston, and Keith Matthews of crimes associated
with unlawful distribution of PCP. A fourth defendant, Ira
Adona, pled guilty before trial. The district court sentenced
Brown to 14 years in prison; Boston to eight years; Matthews
to nine years; and Adona to nine years. Adona’s sentence was
to be served consecutively to a prison sentence of two years
and four months imposed by the D.C. Superior Court for
Adona’s attempted assault with a dangerous weapon.

Defendants challenge their convictions and sentences.
Brown argues that: (i) the district court’s jury instructions were
erroneous in certain respects; and (ii) the district court based
Brown’s sentence on an erroneous factual finding. Boston
 3
contends that the evidence was insufficient to support his
conviction for possession with intent to distribute PCP.
Adona argues that: (i) the district court double counted a D.C.
Superior Court conviction in determining his sentence; and (ii)
his federal and D.C. sentences should run concurrently, not
consecutively. Matthews argues that the district court erred in
sentencing because: (i) the court enhanced Matthews’ sentence
based on attempted assault with a dangerous weapon even
though, according to Matthews, attempted assault with a
dangerous weapon is not a crime of violence; and (ii) the
district court failed to adequately explain Matthews’ above-
Guidelines sentence.

We affirm the judgments of the district court with respect
to Brown and Boston. We vacate the sentences of Adona and
Matthews, and we remand the case to the district court for
resentencing of those two defendants.

I

Louis Clifton lived in the Woodberry Village apartment
complex in Washington, D.C. On January 12, 2013, Clifton
walked into the Metropolitan Police Department’s 7th District
station and told the officers an extraordinary story: Armed men
had taken over his apartment and were using the apartment to
manufacture and sell PCP – all while Clifton continued to live
there.

According to Clifton, at the end of December 2012,
Dawayne Brown and Keith Matthews attacked Clifton in the
foyer of his building and demanded access to his apartment.
Clifton refused. He managed to break free and fled to the
safety of his apartment. Clifton thought that was the end of it.
He was wrong.
 4
One week later, Dawayne Brown again approached
Clifton – this time, with a gun. Brown forced Clifton into a
local Dollar Store at gunpoint and had Clifton make a copy of
Clifton’s house key. Clifton complied, and Brown
immediately took the key. From then on, Brown and
Matthews used Clifton’s apartment as they pleased. They
came and went when they wanted, without permission. And
they used the apartment to prepare “dippers” – cigarettes
dipped in PCP – and to store the money earned from selling
those dippers.

Clifton endured Brown and Matthews in his apartment for
several weeks before going to the police. He claimed to have
sought help discreetly at first, including from family members.
But that proved ineffective. Finally, he turned to the police for
help evicting his unwelcome, PCP-dealing home invaders.

The police traveled to Woodberry Village and entered
Clifton’s apartment, using the key that Clifton had provided
them. A surprised Brown was inside the apartment. Police
placed Brown on a sofa and handcuffed him. When they lifted
him from the sofa, they found a loaded handgun. The police
continued their search of Clifton’s apartment and discovered
an Uzi nine-millimeter semi-automatic rifle and a .38-caliber
revolver under the love seat. They also discovered evidence
of PCP, including glass vials with various amounts of PCP. In
total, 44.4 grams of PCP were recovered.

The police searched Brown’s cell phone. Text messages
on Brown’s phone led police to pursue Keith Matthews.

On March 7, 2013, police arrested Matthews inside
another Woodberry Village apartment. A search of
Matthews’ phone led police to discover that the takeover of
Clifton’s apartment was not an isolated event. Brown,
 5
Matthews, and some friends had formed a drug-dealing
operation that they called “Little Mexico.” Little Mexico’s
method of operation involved using Woodberry Village
apartments to stash guns and sell PCP.

Matthews’ cell phone led police to Tiffany Williams’
apartment. When police executed a search warrant at
Williams’ home, they found Williams, Ira Adona, Breal Hicks,
and Williams’ six-year-old daughter. Police arrested the three
adults and searched the apartment. The search yielded
evidence similar to that found in Clifton’s apartment: partially
filled PCP vials, three handguns, and Everclear grain alcohol,
a known cutting agent for PCP.

Tiffany Williams cooperated with the police and led them
to the apartment of Conovia Eddie, another member of Little
Mexico. After obtaining a search warrant, the police raided
Eddie’s apartment. They used a battering ram to enter after
their demands to open the door had been ignored. Inside, they
found Marquette Boston. Boston was standing near the
bathroom, and the odor of PCP was coming from a running
toilet. Police arrested Boston. Police found vials partially
filled with PCP or containing PCP residue, empty vials, and
rubber gloves, in addition to a bulletproof vest and a loaded
.22-caliber pistol with an effaced serial number.

On September 10, 2013, the government obtained a 39-
count grand jury indictment against Brown, Boston, Matthews,
Adona, Hicks, and Eddie for conspiracy to distribute and to
possess with the intent to distribute PCP and related offenses.

On November 5, 2014, Adona pled guilty to conspiracy to
distribute and possess PCP. Under the plea agreement, Adona
agreed that he had conspired with others to distribute PCP in
Woodberry Village. He also admitted that he had shot a man
 6
named Karl Carrington in the back on April 30, 2012, during a
marijuana transaction. The two crimes were to be sentenced
separately. In the D.C. Superior Court, Adona would be
sentenced for the shooting offense. In the U.S. District Court,
Adona would be sentenced for the drug conspiracy. The D.C.
Superior Court sentenced Adona to two years and four months
in prison. The district court sentenced Adona to nine years in
prison, to be served consecutively to the sentence of
imprisonment imposed by the D.C. Superior Court.

On March 24, 2015, the jury found Brown, Boston, and
Matthews guilty. 1 Brown was found guilty of second-degree
burglary while armed; possession with intent to distribute PCP;
and possession of an unregistered firearm. Boston was found
guilty of possession with intent to distribute PCP. Matthews
was found guilty of unlawful possession of a firearm and
ammunition.

The district court sentenced Brown to 14 years in prison;
Boston to eight years in prison; and Matthews to nine years in
prison.

Brown, Boston, Adona, and Matthews now appeal.

II

Brown challenges the district court’s jury instructions and
his sentence.

A

Brown challenges three aspects of the jury instructions.

1
Breal Hicks and Conovia Eddie also pled guilty, but they have not
appealed their sentences.
 7

First, in its instructions to the jury, the district court stated
that Brown had previously been convicted in the D.C. Superior
Court for possession of an unregistered firearm. Brown
argues on appeal that the district court erred when it informed
the jury of Brown’s prior firearm conviction. The problem for
Brown is that he not only did not object to this instruction at
trial, but he affirmatively invited this instruction. Brown’s
counsel insisted that the jury be informed of the prior
conviction, presumably because of a strategic judgment in the
context of all of the evidence and instructions in the case. A
defendant may not complain about invited error. See, e.g.,
United States v. Ginyard, 215 F.3d 83, 88 (D.C. Cir. 2000).
Because Brown invited the error, he may not now complain of
the error on appeal.

Second, Brown contends that the district court failed to
give a special unanimity instruction with respect to the
possession with intent to distribute PCP charge. Brown
contends that jurors may have relied on different testimonial
and physical evidence to conclude that he was guilty on that
count. He claims that the jurors’ reliance on different facts to
support his conviction violates the Sixth Amendment. Brown
did not raise this argument in the district court. Therefore, our
review is for plain error. We need not dally on this argument.
Because there is no precedent of the Supreme Court or this
court requiring a district court to give a special unanimity
instruction sua sponte in circumstances like those in this case,
the district court’s failure to do so cannot constitute plain error.
See United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir.
2008). Indeed, in Hurt, this court held that “the trial court’s
failure to give a special unanimity instruction sua sponte was
not plain error,” and Brown makes no argument that would
distinguish his case from Hurt’s. Id. at 1352. As a result,
Brown’s argument is unavailing.
 8

Third, Brown contends that the burglary instruction was
inadequate. The crime of burglary requires proof that the
accused person entered the dwelling of another with the intent
to commit an identified offense. See D.C. Code § 22-801(a).
The district court instructed the jury that it must find that “the
defendant intended to use Mr. Clifton’s apartment as a place to
possess and store narcotics.” Trial Tr. 31 (Mar. 17, 2015).
The district court further explained that Brown must have
“intended to commit a crime” on the premises. Id. Brown
contends that instruction was insufficient because it did not
identify the narcotics as unlawful narcotics. We disagree. In
context, the burglary instruction plainly referred to illegal
drugs. Any rational juror would have easily understood that
the burglary charge related to Brown’s allegedly entering
Clifton’s apartment with the intent to store illegal drugs.

B

Brown argues that the district court, in sentencing Brown,
incorrectly attributed 100 to 400 grams of PCP to him. But
Brown is simply mistaken about the district court’s factual
finding. Brown was not sentenced for possessing more than
100 grams of PCP. He was sentenced for possessing 76.6
grams. The probation office determined that “Mr. Brown is
accountable for 76.6 grams of PCP resulting in a base offense
level of 20.” At sentencing, the district court said that it was
adopting the probation office’s finding of 76.6 grams. We
further know that the district court adopted the probation
office’s finding because a finding that Brown possessed 100 or
more grams would have resulted in a base offense level of 24.
A finding that he possessed 76.6 grams would mean a base
offense level of 20. The district court calculated Brown’s base
offense level to be 20.
 9
III

Marquette Boston argues that there was insufficient
evidence to convict him of possession with intent to distribute
PCP.

When reviewing sufficiency claims, we “accept the jury’s
guilty verdict” if “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Andrews, 532 F.3d 900, 903 n.1 (D.C. Cir.
2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))
(internal quotation marks omitted). We view the evidence in
the light most favorable to the government. See id. at 904 n.1.

Boston was not found with PCP on his person, but rather
near illegal drugs inside of Conovia Eddie’s apartment. But
the evidence tying Boston to the PCP was substantial. First, a
key to Eddie’s apartment was found on Boston, although he did
not live there. Possession “of a key” may be “sufficient to
establish constructive possession.” United States v. Dingle, 114
F.3d 307, 311 (D.C. Cir. 1997). Second, Boston’s presence
inside the apartment was consistent with Little Mexico’s
method of operation of using others’ apartments as trap houses.
Third, the officers had to use a battering ram for roughly a
minute to gain access to the apartment when they were not
admitted after their knock and announce. See Trial Tr. 107
(Mar. 3, 2015 a.m.). A reasonable jury could have considered
that to be evasive conduct on Boston’s part indicating
constructive possession of the contraband found inside the
apartment. See United States v. Dorman, 860 F.3d 675, 680
(D.C. Cir. 2017). Fourth, the officers testified at trial that they
smelled PCP coming from the bathroom. Boston was
standing near the bathroom at the moment that the police
entered, and the toilet had been recently flushed. Fifth, a vial
containing PCP residue was found in the apartment and had
 10
Boston’s left palm print on it. Sixth, a woman named
Monique Mathis testified at trial that Boston sold PCP in
Woodberry Village.

Viewing all of the evidence in the light most favorable to
the government, a rational jury could conclude that Boston
possessed PCP and, using Eddie’s apartment as a base of
operations, intended to distribute PCP.

IV

We next turn to Ira Adona’s appeal. The only defendant-
appellant to plead guilty, Adona raises a single challenge to his
108-month federal prison sentence. In his view, the district
court should have sentenced him concurrently with, rather than
consecutively to, a D.C. Superior Court sentence that stemmed
from his federal guilty plea. To reach that argument, we first
must determine whether Adona waived his right to this appeal.
We conclude that the appeal is not barred and that the district
court plainly erred in its consecutive-sentencing analysis. We
therefore vacate Adona’s sentence and remand for
resentencing.

A

The government contends that Adona’s sentence is not
subject to appeal because his plea agreement waived his right
to appeal his sentence except in specified circumstances. Like
all other courts of appeals, our circuit holds that a defendant
“may waive his right to appeal his sentence as long as his
decision is knowing, intelligent, and voluntary.” United
States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009).
Adona’s plea agreement, which he signed in April 2014, stated:

Your client agrees to waive the right to appeal the
sentence in this case, . . . and the manner in which the
 11
sentence was determined, except to the extent the
Court sentences your client above the statutory
maximum or guidelines range determined by the
Court, in which case your client would have the right
to appeal the illegal sentence or above-guidelines
sentence, but not to raise on appeal other issues
regarding the sentencing.

Plea Agreement 7. Adona’s sentence did not qualify under
either of the specified exceptions: it was not above either the
statutory maximum or the Guidelines range determined by the
court. Accordingly, were we to look only at the written plea
agreement, that would end the matter, and the appeal would be
barred. See United States v. Hunt, 843 F.3d 1022, 1027 (D.C.
Cir. 2016) (noting that we “ordinarily dismiss an appeal falling
within the scope of [an appeal] waiver”).

But although we start with the text of the plea agreement,
we cannot end there: our duty to ensure that an appeal waiver
is knowing, intelligent, and voluntary requires us to examine
also the colloquy with the judge during which Adona entered
his guilty plea. See, e.g., Hunt, 843 F.3d at 1028-29; United
States v. Kaufman, 791 F.3d 86, 88 (D.C. Cir. 2015); United
States v. Godoy, 706 F.3d 493, 495 (D.C. Cir. 2013). Such
plea colloquies are required by Federal Rule of Criminal
Procedure 11(b), and aim “to dispel any misconceptions that
the defendant may have about his likely sentence” and to
correct or clarify any “erroneous information given by the
defendant’s attorney.” United States v. Horne, 987 F.2d 833,
838 (D.C. Cir. 1993) (internal quotation marks omitted). The
Supreme Court has admonished that Rule 11’s “procedural
safeguards serve[] important constitutional interests in
guarding against inadvertent and ignorant waivers of
constitutional rights.” United States v. Vonn, 535 U.S. 55, 67
(2002). Accordingly, we have instructed that “courts
 12
conducting plea colloquies must scrupulously adhere to the
obligations of Rule 11.” United States v. Shemirani, 802 F.3d
1, 3 (D.C. Cir. 2015).

As relevant to this appeal, Rule 11(b) instructs a trial court
to “inform the defendant of, and determine that the defendant
understands, . . . the terms of any plea-agreement provision
waiving the right to appeal or to collaterally attack the
sentence” before accepting a guilty plea. FED. R. CRIM. P.
11(b)(1)(N). In prior cases, we have assiduously assured
compliance with this rule. Noting that “[c]riminal defendants
need to be able to trust the oral pronouncements of district court
judges,” we have scrutinized Rule 11 colloquies to ensure that
district courts accurately explain the scope of defendants’
appeal waivers. Godoy, 706 F.3d at 495 (quoting United States
v. Wood, 378 F.3d 342, 349 (4th Cir. 2004) (internal quotation
marks omitted)). Specifically, we have examined whether
“the district court mischaracterized the meaning of the waiver
in a fundamental way.” Id. If so, “the district court’s oral
pronouncement controls,” and the “appeal is not barred.” Id.
at 496; see Hunt, 843 F.3d at 1028-29; Kaufman, 791 F.3d at
88; United States v. Fareri, 712 F.3d 593, 594-95 (D.C. Cir.
2013).

We focus our analysis on what the district court told
Adona during the plea colloquy. When explaining to Adona
the rights that his guilty plea would waive, the district court
stated:

Now, with regard to certain circumstances, you may
even have an opportunity, the right to appeal the
sentence of this court on the grounds of
reasonableness. Do you understand that?

Adona Plea Hearing Tr. 10 (Nov. 5, 2014). Adona answered
in the affirmative. Id.
 13
The court’s statement described a different right to appeal
than that contained in the written appeal waiver. “Taken for
its plain meaning – which is how criminal defendants should
be entitled to take the statements of district court judges,”
Godoy, 706 F.3d at 495 – the district court’s statement
suggested to Adona that he could appeal a sentence he thought
unreasonable. Because “the district court mischaracterized
the meaning of the waiver in a fundamental way,” “the district
court’s oral pronouncement controls,” and the “appeal is not
barred.” Id. at 495-96.

The district court’s statement is not saved by its
conditional nature. The court’s use of “may” was hardly
clarifying because “may” can mean “can” as well as “might.”
See BLACK’S LAW DICTIONARY 1127 (10th ed. 2014). Nor is
the statement saved by the “with regard to certain
circumstances” language, which was unaccompanied by any
description of what those “certain circumstances” were or were
not. See Kaufman, 791 F.3d at 88 (vitiating plea waiver where
the court initially told the defendant that he “would still have
the right to appeal the sentence if [he] believe[d] the sentence
is illegal,” and later told him that he “might have the right to
appeal, under some circumstances, if he did not ‘like’ the
sentence”); cf. Fareri, 712 F.3d at 594 (vitiating appeal waiver
where the district court declared, without further explanation,
that the defendant “probably retain[ed] the right” to appeal
certain sentences). By leaving those circumstances
unexplained, the district court failed to “inform the defendant
of . . . the terms of any plea-agreement provision waiving the
right to appeal,” as Rule 11(b) requires.

We also cannot uphold the waiver on the grounds that
“reasonableness” is a “legal term of art” in the Sentencing
Guidelines context. See United States v. Ingram, 721 F.3d 35,
43 (2d Cir. 2013) (Calabresi, J., concurring). In assessing the
 14
adequacy of plea colloquies, we do not assume familiarity with
criminal-law argot. Rather, we ask how a defendant like
Adona (who left school after completing eleventh grade,
Adona Plea Hearing Tr. 6) would understand the district court’s
pronouncement. See Godoy, 706 F.3d at 495. That is why,
in Godoy, we found that the mention of a right to appeal an
“illegal” sentence was misleading, even though the court’s
statement was technically accurate considering that “illegal
sentence” is a lawyerly term of art. Here, likewise, we do not
pause to parse the precise legal meaning of “reasonableness.”
Rather, we note that Adona surely thinks his sentence
unreasonable, and that his belief is not outside the common
meaning of that word.

The conclusion that the district court’s plea colloquy was
deficient does not end our analysis. Notwithstanding the
district court’s misstatement, the government contends that
Adona’s counsel “clarified any ambiguity” in the plea
colloquy. U.S. Br. 65 n.27. To assess this claim, we turn to
Adona’s counsel’s statement, which was as follows:

And I’ve advised Mr. Adona of what Your Honor said
to him in open court prior to this, that Your Honor . . .
would consider the advisory guidelines, but your
inclination was that that – the court would probably
depart upward and would state the reasons for that.
I’ve explained to Mr. Adona, and I think Your Honor
just went over briefly with him earlier, that under the
plea agreement he retains the right to appeal that
decision and – if Your Honor does do that.

Adona Plea Hearing Tr. 14.

We need not decide whether or under what circumstances
a statement by defense counsel may cure a district court’s
mischaracterization of a plea waiver because counsel’s
 15
statement did not do so in this case. Contrary to the
government’s contention, Adona’s counsel did not state “that
Adona would retain the right to appeal only if the district court
sentenced him to an above-guidelines sentence.” U.S. Br. 65
n.27 (emphasis added). Instead, Adona’s counsel merely told
him that he retained the right to appeal an above-Guidelines
sentence, without suggesting that was the only category of
sentence he could appeal. Indeed, that was not the only
category of sentence he could appeal, even under the written
plea agreement – which permitted him also to appeal a sentence
“above the statutory maximum.” Plea Agreement 7.
Accordingly, because counsel’s statement made no effort to
mark the metes and bounds of appealable sentences, it did
nothing to inform Adona of the true scope of his appeal waiver.

Nor did the government say anything to clarify or correct
the record – despite our recent admonition that “the United
States Attorney’s Office would be well advised to develop
instructions and training for its attorneys to make it part of their
routine practice to help ensure that district courts fulfill each of
the requirements of Rule 11 . . . when a defendant enters a
plea.” Shemirani, 802 F.3d at 3. Had the government
immediately corrected the record, it could have preserved its
appeal waiver and obviated the need for the past several pages
of this opinion. Because it did not, we now proceed to
addressing the merits of Adona’s appeal.

B

Adona raises a number of arguments about the district
court’s decision to sentence him consecutively to, rather than
concurrently with, his Superior Court sentence. Only one of
them, which concerns the district court’s failure to take into
account Section 5G1.3(b) of the United States Sentencing
Guidelines, has merit. Because Adona failed to assert this
 16
argument in the district court, we review it for plain error only.
United States v. Andrews, 532 F.3d 900, 908 (D.C. Cir. 2008).
Under that standard, “[t]here must be (1) error, (2) that is plain,
and (3) that affect[s] substantial rights. If all three conditions
are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quoting Johnson v. United States, 520 U.S.
461, 467 (1997)); see United States v. Olano, 507 U.S. 725,
731-36 (1993).

1

The district court accepted Adona’s plea agreement in
November 2014. As part of his guilty plea, Adona admitted
to conspiring to distribute and possess PCP, in violation of 21
U.S.C. §§ 841, 846. He proffered that he “knowingly and
intentionally distributed PCP in vials and cigarette ‘dippers,’”
that he “kept, stored, shared, and maintained firearms” within
Woodberry Village, and that he undertook these activities in
conspiracy with his five co-defendants. Plea Agreement 14.

The agreement also required Adona to plead guilty to a
D.C. Superior Court charge of attempted assault with a
dangerous weapon, in violation of 22 D.C. Code §§ 402, 1803.
That charge stemmed from Adona’s shooting of Karl
Carrington, who had attempted to purchase marijuana from
Adona. Plea Agreement 15.

Prior to entering Adona’s plea, the district court made
clear that it would accept the deal only on the condition that
Adona would “be sentenced and plead first in Superior Court.”
Adona Status Conf. Tr. 6 (Oct. 7, 2014). This requirement,
the court explained, was so “I have the option, which I will
exercise, to sentence [Adona] consecutively.” Id. The
district court announced in the same hearing that Adona’s
 17
“guideline range is not proportionate to the seriousness of [his]
conduct,” and that Adona “should know going in, that there is
not much, if any, likelihood that there will be a sentence from
this Court within the guideline range.” Id. at 5-6.

On October 29, 2014, pursuant to the plea agreement,
Adona pled guilty to the attempted assault charge in Superior
Court. On January 30, 2015, the court sentenced Adona to 28
months’ imprisonment on that charge.

Adona’s shooting of Carrington also affected the
calculation of his federal Guidelines range. The Probation
Office’s pre-sentence investigation report (PSR) recited that
Adona “shot Mr. Karl Carrington in the back.” 2 It therefore
recommended that Adona’s offense level be “enhanced two
levels because of his use of violence” in related conduct.
Adona PSR 15; see U.S.S.G. § 2D1.1(b)(2).

In a July 2015 presentencing hearing, Adona’s counsel
protested the consequences of the use-of-violence
enhancement. He asked the district court to “take into
consideration” the 28-month Superior Court sentence, noting
that it penalized the same behavior as did the use-of-violence
enhancement. Adona Status Hearing Tr. 34 (July 28, 2015).
Specifically, he argued, the district court should run the portion
of its sentence that stemmed from the use-of-violence
enhancement concurrently with the Superior Court sentence.
Otherwise, counsel contended, Adona would be “punished
twice.” Id. at 35.

2
The PSR was filed under seal. “Insofar as we refer to information
derived from the PSR, it is unsealed to the limited extent referenced
in this opinion, although the full document shall remain physically
withheld from public review.” United States v. Reeves, 586 F.3d 20,
22 n.1 (D.C. Cir. 2009).
 18
The district court initially seemed amenable to this
argument. Declaring that Adona’s counsel made a “good
point,” and that the use-of-violence enhancement could be
“punishing [Adona] twice for the same thing,” the court
queried whether it should simply drop the enhancement
altogether:

So why wouldn’t the prudent thing to do for a judge
in this situation is to not give him the two points for
violence, take that issue off the table for any appeal
down the road . . . . I have plenty of discretion with
regard to consecutive sentenc[ing] for the shooting
over in the Superior Court. Why create the issue?
Why create legal problems when I don’t need to?

Id. at 36, 38. Eventually, however, the court decided to accept
the use-of-violence enhancement – but not before Adona’s
counsel again asked the court to “take into consideration” the
double-counting issue, and not before the district court
responded, “I absolutely will. You have my commitment to
that . . . .” Id. at 40.

We come, finally, to the sentencing hearing itself, where
Adona’s counsel again requested a partially concurrent
sentence. At this hearing, however, the district court was less
receptive, stating, “You’ve heard the Court speak about
consecutive sentence[s]. Obviously, you know it’s going to be
a consecutive sentence to what happened over in the Superior
Court.” Adona Sentencing Hearing Tr. 24 (Sept. 29, 2015).
Accordingly, the court ordered Adona to serve 108 months’
incarceration (the top of the Sentencing Guidelines range), to
run consecutively to his Superior Court sentence.
 19
2

In general, Congress affords the courts discretion in
deciding whether to sentence defendants convicted of multiple
crimes concurrently or consecutively. Regardless of whether
“multiple terms of imprisonment are imposed on a defendant
at the same time” or “a term of imprisonment is imposed on a
defendant who is already subject to an undischarged term of
imprisonment,” the district court may assign a sentence to “run
concurrently or consecutively.” 18 U.S.C. § 3584(a).
Congress instructs judges deciding this question to consider the
same factors, enumerated in 18 U.S.C. § 3553(a), that bear on
the length of a defendant’s sentence. Id. § 3584(b). Those
factors include the nature of the offense, the history of the
defendant, and – crucially for this case – the Guidelines issued
by the United States Sentencing Commission. Id.
§ 3553(a)(1), (4).

The Guideline that is relevant here is U.S.S.G. § 5G1.3,
“Imposition of a Sentence on a Defendant Subject to an
Undischarged Term of Imprisonment or Anticipated State
Term of Imprisonment.” Section 5G1.3, which “operates to
mitigate the possibility that the fortuity of two separate
prosecutions will grossly increase a defendant’s sentence,”
Witte v. United States, 515 U.S. 389, 405 (1995), provides in
relevant part:

(b) If . . . a term of imprisonment resulted from
another offense that is relevant conduct to the instant
offense of conviction under the provisions of
subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3
(Relevant Conduct), the sentence for the instant
offense shall be imposed as follows:

....
 20
(2) the sentence for the instant offense shall be
imposed to run concurrently to the remainder of
the undischarged term of imprisonment.

U.S.S.G. § 5G1.3(b) (emphasis added).

The government does not dispute that the district court
treated Adona’s Superior Court term of imprisonment for
assault as having “resulted from another offense that is relevant
conduct to the instant offense of conviction,” i.e., the federal
drug charge. See U.S. Br. 72 (“The Carrington shooting . . .
was ‘relevant conduct’ for the purposes of Adona’s conspiracy
sentencing.”). Otherwise, the district court could not have
taken the Carrington shooting into account when assigning a
use-of-violence enhancement, and we would be presented with
a different (although equally plain) Sentencing Guidelines
error. See U.S.S.G. § 1B1.3(a) (providing that, in determining
Guidelines enhancements, the sentencing court may only take
into account relevant conduct); United States v. Mellen, 393
F.3d 175, 182 (D.C. Cir. 2004) (same). Accordingly, “the
sentence for the instant offense” should have been “imposed to
run concurrently to the remainder of the undischarged term of
imprisonment.” U.S.S.G. § 5G1.3(b)(2); see United States v.
Nania, 724 F.3d 824, 830-34 (7th Cir. 2013). This conclusion
follows inexorably from the text of § 5G1.3(b), and the
government does not disagree.

“Of course, given the advisory nature of the Sentencing
Guidelines, a district court has no obligation to impose a
concurrent sentence, even if § 5G1.3(b) applies.” Nania, 724
F.3d at 830; see United States v. Booker, 543 U.S. 220, 245
(2005). But a court must nonetheless “begin all sentencing
proceedings by correctly calculating the applicable Guidelines
range.” Gall v. United States, 552 U.S. 38, 49 (2007); see
Booker, 543 U.S. at 264 (requiring sentencing courts to
 21
“consult” and “take . . . into account” the Guidelines). The
district court did not do so here.

3

Because the district court did not acknowledge that the
Guidelines recommended a concurrent sentence, it improperly
applied the Guidelines. That misapplication was error.

Moreover, the court’s error was “plain” – that is, “clear”
or “obvious.” Olano, 507 U.S. at 734. The government does
not contest this prong of the plain-error analysis either, and for
good reason: “failing to calculate (or improperly calculating)
the Guidelines range” is “significant procedural error,” Gall,
552 U.S. at 51, that rises to the level of plain error, at least
where the text of the Guidelines is clear.

That error prejudiced Adona. As the Supreme Court
recently explained, “[w]hen a defendant is sentenced under an
incorrect Guidelines range[,] . . . the error itself can, and most
often will, be sufficient to show a reasonable probability of a
different outcome absent the error.” Molina-Martinez v.
United States, 136 S. Ct. 1338, 1345 (2016). “Indeed,” the
Court continued, “in the ordinary case a defendant will satisfy
his burden to show prejudice by pointing to the application of
an incorrect, higher Guidelines range and the sentence he
received thereunder. Absent unusual circumstances, he will
not be required to show more.” Id. at 1347; see United States
v. Burnett, 827 F.3d 1108, 1121 (D.C. Cir. 2016).

The government contends that unusual circumstances are
present here. It asserts that the district court “made clear” that
it planned to sentence Adona to a “lengthy, and consecutive,”
sentence. U.S. Br. 70 (citing Adona Sentencing Hearing Tr.
15, 24). Accordingly, in its view, “Adona could not show that,
had the court expressly considered § 5[G]1.3(b), it would have
 22
run part of the federal sentence concurrently instead.”
Id.

The government’s argument misstates the standard for
prejudice. In the sentencing context, a defendant need not
show that a sentence would have issued differently but for the
district court’s plain error. He need demonstrate only a
“reasonable likelihood that the sentencing court’s obvious
errors affected his sentence.” United States v. Saro, 24 F.3d
283, 288 (D.C. Cir. 1994); see Molina-Martinez, 136 S. Ct. at
1343. The statements of the district court that the government
cites hardly preclude a reasonable likelihood of a different
result – especially because the government omits to mention
the district court’s various statements, noted above, indicating
that it was willing to consider the double-counting problem.
See Adona Status Hearing Tr. 36, 38, 40.

Finally, having concluded that Adona has demonstrated an
error that was clear and that affected his substantial rights, we
exercise our discretion to correct the district court’s plain error.
“We have repeatedly opted to correct plain sentencing errors
that, if left uncorrected, would result in a defendant serving a
longer sentence.” In re Sealed Case, 573 F.3d 844, 853 (D.C.
Cir. 2009); United States v. Coles, 403 F.3d 764, 767 (D.C. Cir.
2005) (“[I]t is a miscarriage of justice to give a person an illegal
sentence that increases his punishment . . . .” (quoting United
States v. Paladino, 401 F.3d 471, 483 (7th Cir. 2005)). We
therefore vacate Adona’s sentence and remand for
resentencing. On remand, the district court must consider –
but is not bound by – the guidance of § 5G1.3(b).

V

The government obtained a wide-ranging indictment that
charged the then-22-year-old Keith Matthews with twenty-two
 23
criminal counts, including conspiracy, drug, firearms,
extortion, assault, kidnapping, and robbery offenses. By trial,
the government had lost or abandoned all but eight of those
charges. The jury ultimately acquitted Matthews of each
remaining offense, save one: unlawful possession of a firearm
as a felon, in violation of 18 U.S.C. § 922(g)(1).

Matthews does not challenge his conviction for that single
offense, only his sentence. The district court agreed with the
Probation Office that the relevant Sentencing Guidelines range
was 78 to 97 months. After studying the characteristics of
Matthews’ criminal conduct and his background, the Probation
Office specifically determined that nothing warranted an
upward variance in Matthews’ case. Nevertheless, the district
court sentenced Matthews to 108 months of imprisonment, a
38% increase above the lower portion of the range and an 11%
increase above the very top of the range.

Matthews challenges both the district court’s calculation
of the Guidelines range and its imposition of an above-
Guidelines sentence. We review a sentencing court’s
determinations in two steps, asking first whether the court
committed procedural error in calculating the defendant’s
sentence, and next whether the sentence imposed was
substantively reasonable. In re Sealed Case, 527 F.3d 188,
190-191 (D.C. Cir. 2008). We hold that the district court
properly calculated Matthews’ Sentencing Guidelines range,
but it failed to explain adequately its variance from that range.
For that reason, we vacate Matthews’ sentence and remand for
resentencing.
 24
A

We review de novo the district court’s interpretation of the
Sentencing Guidelines in calculating a defendant’s Sentencing
Guidelines range. In re Sealed Case, 548 F.3d 1085, 1090
(D.C. Cir. 2008).

For felon-in-possession offenses, a defendant’s base
offense level turns on numerous factors including, as relevant
here, the defendant’s prior criminal history. If the defendant
has “one [prior] felony conviction of either a crime of violence
or a controlled substance offense” and the offense involves a
firearm of the type described in 26 U.S.C. § 5845(a), the
defendant receives a base offense level of 22. U.S.S.G.
§ 2K2.1(a)(3). If the defendant does not have such a
qualifying prior conviction, he receives a base level of either
18 or 20, depending on the presence of other aggravating
factors. Id. § 2K2.1(a)(5). 3

In computing Matthews’ Guidelines range for his unlawful
possession of a firearm, the district court concluded that
Matthews’ conviction five years earlier for attempted assault
with a dangerous weapon under District of Columbia law, 22
D.C. Code § 402, qualified him for a “crime of violence”
enhancement under Guidelines Section 2K2.1(a)(3). That

3
More specifically, Section 2K2.1(a)(3) provides that the
defendant’s “Base Offense Level” will be: “22, if (A) the offense
involved a (i) semiautomatic firearm that is capable of accepting a
large capacity magazine; or (ii) firearm that is described in 26 U.S.C.
§ 5845(a); and (B) the defendant committed any part of the instant
offense subsequent to sustaining one felony conviction of either a
crime of violence or a controlled substance offense[.]”
 25
determination increased Matthews’ base offense level by four
points from 18 to 22. U.S.S.G. § 2K2.1(a)(3) (2014). 4

Matthews argues that attempted assault with a dangerous
weapon does not qualify as a “crime of violence,” and for that
reason his base offense level should have been four points
lower and his sentencing range reduced to 51 to 63 months.
But settled circuit precedent establishes that Matthews’ earlier
conviction falls within the elements clause, and so the district
court properly applied the offense-level adjustment in
calculating Matthews’ Sentencing Guidelines range.

The Guidelines that governed Matthews’ sentencing
defined a “crime of violence” as “any offense” punishable by a
year or more of imprisonment that

(i) “has as an element the use, attempted use, or
threatened use of physical force against the person
of another,”

(ii) “is burglary of a dwelling, arson, or extortion,
involves use of explosives,” or

(iii) “otherwise involves conduct that presents a serious
potential risk of physical injury to another.”

U.S.S.G. § 4B1.2(a) (2014). That first criterion for qualifying
as a crime of violence is known as the “elements” clause. The
second is often described as the “enumerated offense”
provision. And the third has been labeled the “residual”
clause.

4
These calculations are based on the November 2014 Sentencing
Table, the matrix in effect at the time of Matthews’ sentencing.
 26
To determine whether Matthews’ prior conviction for
attempted assault with a dangerous weapon qualifies under the
elements clause, the district court properly applied the
“categorical approach” and asked whether the elements of
attempted assault with a dangerous weapon necessarily require
“the use, attempted use, or threatened use” of “violent” force.
Johnson v. United States, 559 U.S. 133, 136, 140, 145 (2010);
United States v. Castleman, 134 S. Ct. 1405, 1413 (2014).
That analysis looks only to the elements of the crime to
determine whether, by its terms, commission of the crime
inherently (i.e., categorically) requires the kind of force
“capable of causing physical pain or injury to another person”
in all cases. Johnson, 559 U.S. at 140. If it is possible to
commit the crime without the use, attempted use, or threatened
use of violent force, the offense-level enhancement does not
apply, regardless of whether the defendant’s actual conduct in
perpetrating the offense would individually qualify. See
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (holding
that courts generally may not look to the facts of a defendant’s
conviction when applying the categorical approach).

The relevant District of Columbia Code provision casts
little informative light on the elements of the crime of
attempted assault with a deadly weapon. See 22 D.C. Code
§ 402. But case law has identified its elements as: (1) “an
attempt, with force or violence, to injure another, or a menacing
threat, which may or may not be accompanied by a specific
intent to injure;” (2) “the apparent present ability to injure the
victim;” (3) a general “intent to commit the acts which
constitute the assault;” and (4) “the use of a dangerous weapon
in committing the assault.” Spencer v. United States, 991
A.2d 1185, 1192 (D.C. 2010) (internal quotation marks
omitted).
 27
Given that fourth element – the required use of a
dangerous weapon – circuit precedent forecloses Matthews’
argument that attempted assault with a deadly weapon is not a
crime of violence within the meaning of the elements clause,
U.S.S.G. § 4B1.2(a)(1) (2014). In United States v. Redrick,
841 F.3d 478 (D.C. Cir. 2016), this court had “little difficulty”
in concluding that the parallel offense of armed robbery under
Maryland law “contains as an element the use, attempted use,
or threatened use of physical force against the person of
another” precisely because of its requirement that the defendant
commit the crime with the use of a dangerous or deadly
weapon. Id. at 484 (internal quotation marks omitted).
Specifically, the court ruled that the offense of robbery is an
offense against an individual, and that the use of a dangerous
weapon as part of that crime transformed the threat of force
present in simple robbery into a threat of violent force. Id.
(“Certainly the additional element of ‘use’ of a dangerous or
deadly weapon supplies at minimum a ‘threat’ of physical force
against the person of another. And because the means
employed is a ‘dangerous or deadly weapon,’ the required
degree of force – that is, ‘violent force’ – is present.”)
(emphasis in original). 5

So too here. Assault is an offense against an individual,
and adding a dangerous weapon into the mix makes the crime
an inherently violent one. Use of that weapon as part of the
crime materially increases the risk that violence will ensue.

5
Matthews does not suggest that his offense falls outside the crime
of violence definition because it allows for a mens rea of
recklessness. Cf. Voisine v. United States, 136 S. Ct. 2272, 2278
(2016) (holding that a “reckless domestic assault qualifies as a
misdemeanor crime of violence” under the use-of-force provision).
 28
To be sure, Matthews was convicted of attempt, rather than
the substantive assault crime itself. But that is a distinction
without a difference. The use-of-force clause refers explicitly
to offenses that have as an element “the . . . attempted use . . .
of physical force against the person of another.” U.S.S.G. §
4B1.2 (emphasis added). Linking to that text, the commentary
to the Sentencing Guidelines specifically states that a crime of
violence “include[s] the offenses of aiding and abetting,
conspiring, and attempting to commit such offenses.”
U.S.S.G. § 4B1.2, cmt. 1; see United States v. Winstead, __
F.3d __, No. 12-3036, 2018 WL 2372193, at * 8 (D.C. Cir. May
25, 2018) (citing the crime-of-violence definition for the
proposition that the Sentencing Commission “knows how to
include attempted offenses when it intends to do so”); see also
James v. United States, 550 U.S. 192, 198 (2007) (observing
that the “attempted use” language of the Armed Career
Criminal Act’s similarly worded elements clause demonstrated
“Congress’ inclusion of attempt offenses”).

Matthews, moreover, does not argue that D.C. “attempt”
differs from generic attempt in any way that would place it
outside the Guidelines’ commentary. Nor does he contend
that including his attempt offense as the commentary indicates
would “violate[] the Constitution or a federal statute, or [be]
inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). 6

Instead, Matthews contends that D.C.’s attempted assault
with a dangerous weapon is more akin to Massachusetts’ law
governing robbery with a dangerous weapon, a crime that the

6
Winstead, in any event, would foreclose such a belated challenge
by Matthews. See Winstead, __ F.3d at __, No. 12-3036, 2018 WL
2372193, at * 6 (“[W]e would not reverse the district court’s decision
on the guidelines issue under [the plain error] standard.”).
 29
Ninth Circuit has held does not categorically require the use or
threat of violent force. See United States v. Parnell, 818 F.3d
974 (9th Cir. 2016). But Massachusetts’ offense requires only
the possession of a dangerous weapon, not its use. Id. at 980.
“[B]y two oddities of Massachusetts law,” the crime of robbery
with a dangerous weapon covers robberies that do not involve
“violence or intimidation of any sort,” including in situations
where the weapon is present but plays no role in the offense
itself. Id. at 982 (Watford, J., concurring). By contrast,
assault with a dangerous weapon under District of Columbia
law requires both intimidation and the actual use of a dangerous
weapon. See Spencer, 991 A.2d at 1192 (listing “the use of a
dangerous weapon in committing the assault” as an element of
the offense).

The District of Columbia cases that Matthews cites show
only that the victim need not subjectively know that the
defendant is using a dangerous weapon; the requirement that
the defendant “use” the weapon – and thus that the firearm play
an actual role in the offense – remains. See, e.g., Parks v.
United States, 627 A.2d 1, 6 (D.C. 1993) (upholding assault
with a dangerous weapon conviction where the defendant
reached for a gun and raised it to his knee without the officer’s
awareness). Even when the victim is unaware that the
perpetrator has a dangerous weapon, the defendant’s use or
attempted use of a weapon for his own purposes during the
crime creates a serious threat that physical violence will result.

In sum, a straightforward application of Redrick to
Matthews’ case confirms that the district court properly set
Matthews’ base offense level at 22 because of his prior
 30
conviction for attempted assault with a dangerous weapon
under D.C. law. 7

B

With circuit precedent this time at his back, Matthews
fares much better on his claim that the district court failed
adequately to explain his above-Guidelines sentence.

Ordinarily, we review asserted procedural error in a
sentencing decision for an abuse of discretion. See In re
Sealed Case, 527 F.3d at 190. But because Matthews raised
this issue for the first time on appeal, we will reverse only for
plain error. United States v. Mahdi, 598 F.3d 883, 888 (D.C.
Cir. 2010). Accordingly, Matthews bears the burden of
showing that the district court committed an error that is plain,
affects his substantial rights, and “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.

Thrice before, this court has held that an inadequately
explained and insufficiently particularized upward variance
constitutes plain error. See, e.g., United States v. Brown, 808
F.3d 865, 867, 872 (D.C. Cir. 2015); United States v. Akhigbe,
642 F.3d 1078, 1086 (D.C. Cir. 2011); In re Sealed Case, 527
F.3d at 191-192. Today marks the fourth time.

“It has been uniform and constant in the federal judicial
tradition for the sentencing judge to consider every convicted
person as an individual and every case as a unique study in the

7
Because Matthews’ conviction qualifies as a crime of violence
under the elements clause of U.S.S.G. § 4B1.2 (2014), we need not
wrestle with the language of the residual clause. (We note that the
Sentencing Commission has since removed the residual clause. See
U.S.S.G., Supp. App. C, Amdt. 798 (effective Aug. 1, 2016)).
 31
human failings that sometimes mitigate, sometimes magnify,
the crime and the punishment to ensue.” Gall v. United States,
552 U.S. 38, 52 (2007) (citation omitted). Accordingly, to
sustain an upward variance, the district court must undertake
an individualized assessment of the defendant’s particular
offense and characteristics, and then “must state the specific
reason why the defendant’s conduct was more harmful or
egregious than the typical case represented by th[e] [relevant
Sentencing Guidelines] range.” Brown, 808 F.3d at 867
(internal quotation marks and alterations omitted). And
Congress has commanded that the sentencing court must state
such reasons “with specificity.” 18 U.S.C. § 3553(c). The
court cannot satisfy that requirement with generic recitations of
the sentencing factors, but rather must articulate “why the court
believe[s]” that an above-Guidelines sentence is appropriate
“for this particular defendant.” Akhigbe, 642 F.3d at 1086.
In addition, when a court deviates from the Guidelines, it must
provide an explanation “sufficiently compelling to support the
degree of the variance.” Gall, 552 U.S. at 50.

Because the duty to provide the required individualized
explanation is settled law, a district court’s failure to spell out
its reasoning constitutes plain error. That error, moreover,
affects the defendant’s substantial rights and implicates the
fairness and integrity of the justice system because it precludes
meaningful appellate review. See Akhigbe, 642 F.3d at 1087-
1088 (“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 affecting the fairness, integrity, or
public reputation of judicial proceedings.”) (internal quotation
marks and alterations omitted). This is true even if the length
of the sentence imposed “would otherwise be reasonable.” In
re Sealed Case, 527 F.3d at 193 (internal quotation marks
 32
omitted). Appellate courts, after all, cannot evaluate the
reasonableness of the unexplained.

In analyzing the sufficiency of the district court’s decision,
we must first take account of what considerations were already
built into Matthews’ recommended Guidelines range. That is
because an upward variance is not supposed to reduplicate
punishment already meted out by the Guidelines’ range itself.
See Brown, 808 F.3d at 872 (noting that “the applicable
category of offense committed by the applicable category of
defendant . . . provides the bench mark for assessing whether
criminal behavior merits an upward variance”). So when
choosing an above-Guidelines sentence, it is critical that the
district court explain why the otherwise applicable Guidelines
calculation “does not fully account for the described criminal
conduct.” Id. And, as the Supreme Court recently reminded,
the district court must do so “with specificity.” Hughes v.
United States, __ U.S. __, No. 17-155, 2018 WL 2465187, at *
6 (June 4, 2018). 8

Matthews was convicted of unlawful possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). In calculating
the appropriate Guidelines range, the court enhanced
Matthews’ base offense level by two points for the possession
of multiple firearms, U.S.S.G. § 2K2.1(b)(1)(A), and (as noted
above) by four points for the use of an unlawful firearm in
conjunction with a prior crime of violence, id.
§ 2K2.1(b)(6)(B). Those enhancements almost doubled the

8
As the Supreme Court just reiterated, that duty to articulate the
grounds for an above-Guidelines sentence with particularity is fully
consonant with the “advisory only” nature of the Sentencing
Guidelines. Hughes, 2018 WL 2465187, at * 5. Insisting on such
reasoned explanation is a far cry from making the Guidelines
“talismanic.” Dissenting Op. at 5.
 33
applicable sentencing range (from 51-63 months to 97-121
months). A two-point deduction for acceptance of
responsibility then brought Matthews’ final range down to 78-
97 months – a range still well-above the 51-63 months dictated
by his base offense level.

The district court concluded that the resulting Guidelines
range of 78 to 97 months, which the Probation Office had
expressly endorsed, was too low because Matthews was
involved in “drug dealing,” “some related acts of violence,”
and he “had a lot of weapons.” Matthews Sentencing Hearing
Tr. 27-28 (Sept. 1, 2015). But, as the Probation Office’s
calculations reflect, Matthews’ Guidelines range already
specifically accounted for those same factors by adding 46 to
58 months to his sentencing range through the six-point
enhancements of his base offense level. At no point did the
district court find or explain why that nearly 50% increase in
Matthews’ sentencing range was not enough punishment for
that same conduct. Nor did the district court identify any way
in which Matthews’ conduct “was more harmful or egregious”
than the mine run of defendants facing those same
enhancements. Brown, 808 F.3d at 866-867.

The district court’s remaining reasons amount to little
more than a recitation of the Section 3553(a) factors without
any individualized “application to the defendant being
sentenced.” Brown, 808 F.3d at 871 (citing Akhigbe, 642 F.3d
at 1086). Specifically, the court referenced a need “to deter”
Matthews and others from engaging in this kind of conduct, to
“protect the community,” and “to promote respect for the law.”
Matthews Sentencing Hearing Tr. 28-29.

Reciting the statutory factors is where the sentencing
calculus should start, not where it should end. Yet nothing in
the court’s decision tied those generic sentencing factors to
 34
anything distinctive about Matthews’ crime or background that
would warrant increasing his sentence beyond the punishment
already captured by all the elements that went into his
individual Guidelines calculation. As it stands, the district
court’s decision is devoid of the “individualized reasoning”
necessary to understand why the court felt an upward variance
“was appropriate for this particular defendant” in a way that it
would not be for others to whom the same drug and firearms
enhancements are applied. Akhigbe, 642 F.3d at 1086.

The dissenting opinion asks only whether Matthews is a
more serious felon-in-possession than any other “ordinary
felon in possession.” Dissenting Op. at 8; see id. at 9. That
overlooks that Matthews’ sentencing range already accounts
for certain aggravating aspects of his firearm possession –
specifically, the number of weapons he possessed (two points)
and the fact that he possessed a firearm in conjunction with
other criminal activity (four points). To justify an upward
variance, the district court had to differentiate Matthews from
other defendants within the same heightened Guidelines range,
not just other defendants convicted of the same crime. See
Brown, 808 F.3d at 872; see also Hughes, 2018 WL 2465187,
at * 9 (federal law aims to ensure that “those who commit
crimes of similar severity under similar conditions receive
similar sentences”) (quoting Freeman v. United States, 564
U.S. 522, 533 (2011) (plurality opinion)).

Lastly, the district court said that it wanted to make an
example out of Matthews. Matthews Sentencing Hearing Tr.
29 (“And I’m [varying upwards] symbolically to make a point,
that it’s important that the people in the community, that you
and others see that this kind of conduct has to stop, that you
need to be deterred, they need to be deterred, and that the
community, of course, needs to respect the law, and you need
to respect the law.”). But we are never told why Matthews,
 35
out of all offenders in the community, was singled out for such
messaging. The district court is silent about that. For all the
record shows, nothing marks Matthews out as peculiarly
deserving of even more punishment than the enhancements
already imposed or as presenting a particularly potent symbol
to other would-be offenders. Indeed, the Probation Office was
explicit that it “had not identified any factors that would
warrant a variance from the applicable guideline range based
on the factors outline[d] in 18 U.S.C. § 3553(a).” Matthews
PSR 10. Without any individualized reasoning, the decision
just to pick one defendant out for the systemic value of making
an example of him is the polar opposite of individualized
sentencing.

In short, at no point did the district court’s sentencing
colloquy offer the specific reason or reasons “why [it] found
[Matthews’] conduct more harmful or egregious than the
typical case accounted for in the properly calculated Guidelines
range.” Brown, 808 F.3d at 871 (internal quotation marks and
alterations omitted). Just as in Brown, the court’s “spare and
unparticularized” characterizations of Matthews’ conduct
“closely track[ed] the code provision to which [he] pled, . . .
and two of the specific offense characteristics included in his
Guidelines calculation.” 808 F.3d at 872. This court’s
precedent requires more.

As in Brown, Akhigbe, and In re Sealed Case, the court’s
written statement of reasons is even less illuminating than the
in-court sentencing colloquy. See Brown, 808 F.3d at 874;
Akhigbe, 642 F.3d at 1087; In re Sealed Case, 527 F.3d at 192.
That is because there is no actual written statement. In the
section of the sentencing form directing the court to “[e]xplain
the facts justifying a sentence outside the advisory guideline
 36
system,” the form is completely blank. Matthews Statement
of Reasons 3. 9

The dissenting opinion identifies three concerns “one
might have about the sentence in this case,” and then submits
that, because “all three are policy-based,” they “do not qualify
as legal grounds for vacating the sentence.” Dissenting Op. at
12. We agree. The vacatur of Matthews’ sentence rests
exclusively on binding circuit precedent, not policy.

The dissenting opinion next accuses the court of conflating
substantive and procedural reasonableness. Dissenting Op.
at 10, 14. Not so. The failure to provide a sufficient
explanation for an above-Guidelines sentence is a procedural
failing, not a substantive one. Brown, 808 F.3d at 867
(“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.”) (emphasis added);
Akhigbe, 642 F.3d at 1087 (“In In re Sealed Case, we found
plain procedural error where the district court imposed an

9
Because both the court’s oral and written statements lack the
requisite specificity, we need not address whether a flawed written
statement alone would warrant remand. See Brown, 808 F.3d at 874
(holding that the in-court and written statements “both are clearly
insufficient and independently amount to plain error”); see also 18
U.S.C. § 3742(f) (“If the court of appeals determines that . . . the
sentence is outside the applicable guideline range and the district
court failed to provide the required statement of reasons in the order
of judgment and commitment . . . it shall . . . set aside the sentence
and remand the case for further sentencing proceedings.”); cf. United
States v. Jackson, 848 F.3d 460, 465 (D.C. Cir. 2017) (refraining
from deciding whether a deficient written statement may “ever affect
the validity of an otherwise valid sentence,” but concluding that the
written deficiencies at issue did not affect the defendant’s
“substantial rights”).
 37
above-Guidelines sentence ‘without providing any explanation
at all’ in open court and also submitted no written statement of
reasons.”) (emphasis added). And under settled circuit law,
imposing differentially harsh punishment without any
differentiating reason is plain error, since dispensing with
reasoned explanation eliminates meaningful appellate review.
See id.

The law’s demand that a court explain why a defendant is
treated more harshly than other similarly situated defendants
safeguards a fundamental component of justice: parity in
criminal sentencings. See United States v. Booker, 543 U.S.
220, 250 (2005) (“Congress’ basic statutory goal – a system
that diminishes sentencing disparity – depends for its success
upon judicial efforts to determine, and to base punishment
upon, the real conduct that underlies the crime of conviction.”);
see also Hughes, 2018 WL 2465187, at * 5 (sentencing courts
“need to avoid unwarranted sentencing disparities”). That
aspect of the process broke down in this case.

VI

For the foregoing reasons, we affirm Dawayne Brown’s
conviction and sentence and Marquette Boston’s conviction.
We vacate the sentences of Ira Adona and Keith Matthews and
remand for resentencing.

So ordered.
 MILLETT, Circuit Judge, concurring: I write separately to
put an exclamation on a point I have previously expressed: the
constitutionally troubling use of acquitted conduct as the
specific basis for increasing a defendant’s prison sentence
above the Sentencing Guidelines range. “In a constitutional
system that relies upon the jury as the great bulwark of our civil
and political liberties,” allowing courts at sentencing “to
materially increase the length of imprisonment” based on
conduct for which the jury acquitted the defendant guts the role
of the jury in preserving individual liberty and preventing
oppression by the government. United States v. Bell, 808 F.3d
926, 929–930 (D.C. Cir. 2015) (Millett, J., concurring in the
denial of rehearing en banc) (internal quotation marks,
citations, and alterations omitted); see also id. at 928
(Kavanaugh, J., concurring in the denial of rehearing en banc).

Keith Matthews’ sentence provides yet another living
example of this problem. The government charged Matthews
with twenty-two counts of serious criminal conduct, including
assault, extortion, kidnapping, first-degree burglary while
armed, and a mélange of other drug- and violence-related
offenses. When Matthews pushed back by exercising his
constitutional right to a jury trial, the government’s indictment
collapsed like a house of cards. The district court dismissed
eight of the charges as so insubstantial that no rational juror
could vote to convict. See Fed. R. Crim. P. 29(a); United States
v. Boyd, 803 F.3d 690, 691–692 (D.C. Cir. 2015). For six
others, the government surrendered without a fight, expressly
declining even to present them to a jury. By the time
Matthews’ case reached the jury, his twenty-two counts had
dwindled to eight.

For seven of those remaining eight charges, the
government put on its best case. And it lost, hands down. The
jury acquitted Matthews of every single tried charge except
one: unlawful possession of firearm as a felon in violation of
18 U.S.C. § 922(g)(1). As our Constitution designed, the
 2
People—a jury of Matthews’ peers—spoke loudly and clearly:
the only criminal conduct for which the government could
imprison Matthews was the unlawful possession of a single
firearm.

Unfortunately for Matthews, circuit precedent allowed the
government a second bite at the incarceration apple. The
government acknowledged at sentencing that Matthews “was
not convicted of” assaulting and burglarizing another
Woodberry resident. But let’s punish him anyhow, the
government urged, for exactly that acquitted conduct. Dkt. 402
at 11–12 (“We understand the jury’s verdict, but we also
understand that the Guidelines Range did not take into account
the factual evidence that this man was involved[.]”). The
government, it seems, did not understand what the jury meant
when it said “not guilty.”

To be sure, many considerations at criminal sentencing,
like the defendant’s background, criminal history, and other
mitigating or aggravating factors, need only be proved by a
preponderance of the evidence. But lumping acquitted conduct
in with those traditional factors and then using that acquitted
conduct to single a defendant out for distinctively severe
punishment—an above-Guidelines sentence—renders the jury
a sideshow. Without so much as a nod to the niceties of
constitutional process, the government plows ahead
incarcerating its citizens for lengthy terms of imprisonment
without the inconvenience of having to convince jurors of facts
beyond a reasonable doubt.

Incarceration without conviction is a constitutional
anathema. Bell, 808 F.3d at 932 (Millett, J., concurring in the
denial of rehearing en banc). Our constitutional system of
government reposes ultimate power in the People of the United
States to preserve and maintain liberty. The ultimate threat to
 3
liberty and rule of the People, by the People, and for the People
is the power of the government to lock up and exercise
complete control over its citizens. The genius of the
Constitution’s protections for criminal defendants was to
prevent tyranny in that form by ensuring that an individual’s
liberty could only be stripped away by a jury of his peers upon
proof of a crime beyond a reasonable doubt. In re Winship, 397
U.S. 358, 362 (1970) (holding that these “rules are historically
grounded rights of our system, developed to safeguard men
from dubious and unjust convictions”) (internal quotation
marks omitted); id. at 363 (“The [reasonable-doubt] standard
provides concrete substance for the presumption of
innocence—that bedrock ‘axiomatic and elementary’ principle
whose ‘enforcement lies at the foundation of the administration
of our criminal law.’”). Allowing the government to lock
people up for a discrete and identifiable term of imprisonment
for criminal charges rejected by a jury is a dagger pointed at
the heart of the jury system and limited government.

I acknowledge that circuit precedent allows the
government to engage in this acquitted-conduct alchemy. See
United States v. Settles, 530 F.3d 920 (D.C. Cir. 2008). But I
do not have to like it or stay silent about what is, in my view, a
grave constitutional wrong.
 KAVANAUGH, Circuit Judge, dissenting in part: The
majority opinion vacates the sentences of defendants Adona
and Matthews. I respectfully dissent on those two issues. I
would dismiss Adona’s appeal based on the appeal waiver in
his plea agreement. I would affirm Matthews’ sentence as
procedurally and substantively reasonable.

I

Ira Adona pled guilty to conspiracy to distribute PCP. The
written plea agreement included an appeal waiver. As relevant
here, the appeal waiver provided that Adona could appeal his
sentence only if his sentence was above the Guidelines range
determined by the District Court. The appeal waiver stated
quite clearly:

Your client agrees to waive the right to appeal the sentence
in this case, including any term of imprisonment, fine,
forfeiture, award of restitution, term of supervised release,
authority of the Court to set conditions of release, and the
manner in which the sentence was determined, except to
the extent the Court sentences your client above the
statutory maximum or guidelines range determined by the
Court, in which case your client would have the right to
appeal the illegal sentence or above-guidelines sentence,
but not to raise on appeal other issues regarding the
sentencing.

J.A. 108 (emphasis added). Adona and his counsel both signed
the plea agreement.

The District Court determined that Adona’s Guidelines
range spanned from 7 years and 3 months in prison to 9 years
in prison. The District Court then sentenced Adona to 9 years
in prison, within the Guidelines range.
 2
The majority opinion acknowledges that Adona’s sentence
fell within the Guidelines range. In light of the plea agreement,
our task therefore should be easy: Dismiss Adona’s appeal. As
this Court has explained: “An appeal waiver serves the
important function of resolving a criminal case swiftly and
finally,” and we “ordinarily dismiss an appeal falling within the
scope of such a waiver.” United States v. Hunt, 843 F.3d 1022,
1027 (D.C. Cir. 2016).

But the majority opinion overrides the appeal waiver and
reaches the merits of Adona’s appeal. The majority opinion
says that the District Court mischaracterized the appeal waiver
during the plea colloquy. For that reason, the majority opinion
concludes that Adona’s appeal waiver was not “knowing,
intelligent, and voluntary.” In re Sealed Case, 702 F.3d 59, 63
(D.C. Cir. 2012).

What was the supposed mischaracterization?

The majority opinion says that the District Court told
Adona during the plea colloquy that Adona could appeal any
sentence based on “reasonableness.” But the District Court
never said that. The District Court stated: “Now, with regard
to certain circumstances, you may even have an opportunity,
the right to appeal the sentence of this court on the grounds of
reasonableness.” Docket No. 258 at 10 (Filed 6/18/15)
(emphasis added). The District Court’s statement was
accurate. The “certain circumstances” language indicated that
there were some circumstances in which Adona would be able
to appeal his sentence and some circumstances in which he
would not be able to appeal his sentence.

What were those “certain circumstances,” as relevant
here? The written plea agreement plainly stated that Adona
 3
could appeal an above-Guidelines sentence, but could not
appeal a within-Guidelines or below-Guidelines sentence.

In short, there was no confusion or mischaracterization
during the plea hearing. Indeed, after the District Court’s
colloquy with Adona, the District Court then asked the defense
counsel to briefly describe the plea agreement’s terms. The
defense counsel stated correctly that Adona could appeal in a
certain circumstance: if the District Court imposed a sentence
above the Guidelines.

And I’ve advised Mr. Adona of what Your Honor said to
him in open court prior to this, that Your Honor – I don’t
know – I guess the best way to describe it would be that
Your Honor had not made up – made a final decision that
you would consider the advisory guidelines, but your
inclination was that that – the court would probably depart
upward and would state the reasons for that.

I’ve explained to Mr. Adona, and I think Your Honor just
went over briefly with him earlier, that under the plea
agreement he retains the right to appeal that decision and
– if Your Honor does do that. And as I said, I will be
advocating that you not do that. But you’ve advised Mr.
Adona of what your thoughts were on that issue.

Id. at 14 (emphasis added). The District Court then asked
Adona, “Does that sound consistent with your understanding”
of the plea agreement? Id. at 14-15. Adona answered, “Yes,
sir.” Id. at 15. A few minutes later, the District Court stated
again, “Now, you’ve heard your attorney’s description of the
plea agreement. That’s consistent with yours, right?” Id. at 19.
Adona replied, “Yes.” Id.
 4
To reiterate, there was no confusion or mischaracterization
at the plea hearing.

Nor was there any confusion about the appeal waiver
during the subsequent proceedings in the case. For example,
the presentence report – which was prepared after the plea
hearing and before sentencing – succinctly explained the
appeal waiver: “The defendant may appeal an illegal sentence
or above-guideline sentence but may not raise other issues on
appeal.” J.A. 546. Adona never suggested to the District Court
that the presentence report’s description of the appeal waiver
was incorrect.

On this record, I find it untenable to claim that Adona and
his counsel were somehow operating under any confusion or
misunderstanding about the scope of the appeal waiver.

Enforcing the waiver as written would hardly be unfair.
Keep in mind that Adona received many benefits from his plea
deal. Adona was involved in a significant PCP distribution
operation in which the gang members terrorized Woodberry
Village residents and took over apartments in the neighborhood
in order to store and deal PCP. On top of that, Adona shot a
man named Karl Carrington in the back during a marijuana
transaction. Given his drug distribution activities and his
violent criminal activity, Adona received a reasonably good
plea deal here, at least as compared to many other similarly
situated defendants. In return, Adona gave up (among other
things) his right to appeal a within-Guidelines sentence, which
is what he ultimately received.

We should enforce the appeal waiver and dismiss Adona’s
appeal.
 5
II

The majority opinion also vacates Keith Matthews’
sentence. I also find that decision confounding.

A

Matthews was a member of the Woodberry Village drug
distribution operation, and he ultimately was convicted of one
offense: unlawful possession of a firearm by a felon. The
advisory Guidelines range for Matthews spanned from 6 years
and 6 months in prison to 8 years and 1 month in prison. The
Government requested an above-Guidelines sentence of 10
years. Matthews requested a within-Guidelines sentence of 6
years and 6 months. The District Court varied upward from the
Guidelines range, but not as much as the Government had
requested. The District Court sentenced Matthews to a slightly
above-Guidelines sentence of 9 years in prison.

Seizing on the Guidelines range as if it were talismanic
(which it is not post-Booker), the majority opinion concludes
that the District Court committed procedural error by failing to
adequately explain Matthews’ above-Guidelines sentence. I
disagree.

We review sentences for procedural and substantive
reasonableness. For a sentence to be procedurally reasonable,
a district court must, among other things, explain the sentence.
For a sentence to be substantively reasonable, a district court
must impose a sentence that is not unreasonably short or long
given all of the facts and circumstances of the offense and
offender.

Under this Court’s precedents on procedural
reasonableness, a district court, in explaining an above-
 6
Guidelines sentence, must also “state the specific reason why
the defendant’s conduct was more harmful or egregious than
the typical case represented by” the Guidelines range. United
States v. Brown, 808 F.3d 865, 866-67 (D.C. Cir. 2015)
(emphasis added); see also United States v. Akhigbe, 642 F.3d
1078, 1086 (D.C. Cir. 2011). A district court must supply
“individualized reasoning as to why” a sentence “above the
Guidelines range was appropriate for this particular
defendant.” Akhigbe, 642 F.3d at 1086.

Even putting aside whether Brown and Akhigbe over-
emphasized the Guidelines range in reviewing the procedural
adequacy of a district court’s sentencing explanation, the
District Court here fully met its procedural obligations,
including under those precedents. Matthews’ crime of
conviction was unlawful possession of a firearm as a felon. In
sentencing Matthews slightly above the advisory Guidelines
range, the District Court explained at length why it was
sentencing Matthews to 9 years in prison.

The District Court stated:

You’re engaged here in a drug operation, and you were
involved with, of course, others, Mr. Brown in particular,
involved in drug dealing. And you had a lot of weapons
on you. You were involved with a lot of weapons. And
there certainly was enough evidence for me to see that you
were involved in some related acts of violence involved
here. So the Court’s mindful of all of that.

And the Court’s mindful that it is very important to deter
you from engaging in any conduct of this kind in the
future.

....
 7

Of course, the Court also wants to deter others. There were
young folks in that neighborhood, undoubtedly, who were
aware of what you were doing and other folks with you,
and maybe even looked to you or aspired to be like you.
And we want to deter them from engaging in conduct of
that kind, because that leads to more violence and more
drug sales in the community.

And, of course, the Court needs to protect the community
from that kind of conduct. We can’t have people out
selling drugs and running around with weapons, and,
especially, weapons that can go off and – whether
intentionally or accidentally, and hurt folks, whether they
be little kids in an apartment or whether they be police
officers trying to do their job across the street.

The Court also needs to promote respect for the law,
respect not only for you to have for the law but for others
to have for the law.

So for all of those reasons, a sentence at the high end of
the guideline range, in my judgment, is not sufficient in
this particular case for your sentence. Something more
than that has to be done in order to deter you and others,
protect the community, promote respect for the law, and,
of course, give you a fair and adequate punishment under
the circumstances.

So as a result of all of that, I’ve decided to vary upwards
to 108 months. It’s not the maximum but it’s not the very
top of the Guideline Range. And I’m doing it symbolically
to make a point, that it’s important that the people in the
community, that you and others see that this kind of
conduct has to stop, that you need to be deterred, they need
 8
to be deterred, and that the community, of course, needs to
respect the law, and you need to respect the law.

J.A. 487-89.

From the District Court’s explanation and the record, we
can identify at least five reasons why the District Court
concluded that this was not an ordinary case and sentenced
Matthews to 9 years in prison.

First, the District Court referenced the other “acts of
violence” committed by Matthews. Id. at 488. Earlier in the
hearing, the Government presented the evidence of those other
acts of violence committed by Matthews: (i) firing “a firearm
he had on his person multiple times in the area near the police
to distract them”; (ii) firing a gun in Tiffany Williams’
apartment while her eight-year-old son was present; and (iii)
participating in the forcible takeover of Louis Clifton’s home
so that Matthews and the drug distribution operation could
better conceal and organize their activities. Docket No. 402 at
9 (Filed 3/17/16). The District Court found that those acts of
violence had been proved by a preponderance of the evidence.
The District Court also concluded that those other acts were not
the typical actions of an ordinary felon-in-possession defendant
in this Guidelines range.

Second, the District Court concluded that Matthews posed
a greater threat to public safety in his neighborhood than an
ordinary felon in possession. Matthews and his colleagues
used weapons to coerce neighbors into surrendering their
homes.

Third, the District Court determined that Matthews’
involvement in that neighborhood drug conspiracy made him
an especially bad role model for youth in the community. This
 9
was not a case where the drug dealers kept to themselves at
home and bought and sold drugs at some other locale. This
gang took over Woodberry Village apartments and sold drugs
inside of Woodberry Village where children were present.
Therefore, the District Court was understandably concerned
about the impact of those illegal activities on the young people
in the community.

Fourth, the District Court stated that Matthews was
“involved with a lot of weapons,” not just the one weapon that
he was convicted of possessing. J.A. 488. The evidence
presented at trial amply supported that conclusion.
Specifically, Matthews complained in a text message that
police had confiscated several of his guns, and pictures
recovered from his cell phone showed Matthews with multiple
guns – illustrating why his nickname in the drug distribution
operation was “Bang.” Docket No. 402 at 14.

Fifth, the District Court stressed the importance of
promoting public respect for the rule of law, especially in a
community besieged by drugs and violence. Matthews did far
more than just possess a firearm, and the District Court thought
it important that the sentence reflect that reality.

Those combined considerations led the District Court to
conclude that “a sentence at the high end of the guideline
range” was “not sufficient.” J.A. 489.

This was not your typical felon-in-possession case within
this Guidelines range. The District Court thoroughly explained
that point when sentencing Matthews. In explaining the
sentence, the District Court readily satisfied its procedural
obligations under the sentencing precedents of the Supreme
Court and this Court.
 10
B

What about substantive reasonableness? On appeal,
Matthews does not advance a substantive unreasonableness
argument. That was a sound decision on his part. It is
important to understand why that is so.

To begin with, we must keep in mind the critical
distinction between procedural and substantive review of
sentences. If a district court fails to explain why it imposed a
particular sentence, that is procedural error. If a district court
explains the sentence, but the district court’s explanation (or to
be precise, the facts and circumstances recounted in the district
court’s explanation) does not justify the length of the sentence,
that is substantive error.

The appellate standard of review in sentencing cases is
abuse of discretion. With respect to our substantive review,
that abuse-of-discretion standard is especially deferential after
Booker because there is no dispositive baseline or anchor to tell
us what a proper sentence is for any given case. How short is
too short? How long is too long? After Booker, the Guidelines
are not the baseline or anchor because “the Guidelines are now
advisory.” Gall v. United States, 552 U.S. 38, 46 (2007).
Therefore, the fact that the district court sentenced a defendant
below, within, or above the Guidelines does not in and of itself
suggest any unreasonableness in the sentence.

Take Gall as an example. The Supreme Court upheld a
sentence of probation even though the Guidelines range was
from 30 to 37 months of imprisonment. The Supreme Court
explained that affording too much weight to the Guidelines
range in the substantive review of sentences would create “an
impermissible presumption of unreasonableness for sentences
outside the Guidelines range” and “would not be consistent
 11
with Booker.” Id. at 47. The Supreme Court added that courts
of appeals may not apply “a heightened standard of review to
sentences outside the Guidelines range.” Id. at 49.

In the wake of Booker and Gall, we have explained that
the “substantive reasonableness inquiry that we must conduct
on appeal boils down to the following question: In light of the
facts and circumstances of the offense and offender, is the
sentence so unreasonably high or unreasonably low as to
constitute an abuse of discretion by the district court?” United
States v. Gardellini, 545 F.3d 1089, 1093 (D.C. Cir. 2008).
Given that the substantive standard for sentencing in the
advisory Guidelines regime is not tied to the Guidelines, and
given that our appellate standard of review of a district court’s
sentence is the deferential abuse-of-discretion standard, it “will
be the unusual case when an appeals court can plausibly say
that a sentence is so unreasonably high or low as to constitute
an abuse of discretion by the district court.” Id.

Turning back to this case, it is not plausible to say that the
9-year sentence for Matthews is substantively unreasonable
given the facts and circumstances of the offense and offender
described above. That no doubt is why Matthews himself does
not advance such an argument.

C

Having said all of that, I can identify three concerns one
might have about the sentence in this case. But all three
concerns are policy-based and, under the relevant Supreme
Court precedents, do not qualify as legal grounds for vacating
the sentence.

First, one may think that the top of the Guidelines range
should represent the upper limit for a sentence, at least absent
 12
extraordinary circumstances. But the problem with that
position comes back to Booker and Gall. Under those cases, a
district court does not need some special justification to impose
an above-Guidelines sentence (or a below-Guidelines sentence,
for that matter). Put another way, the special justifications
needed for departures under the old mandatory Guidelines
regime are not needed for variances under the current advisory
Guidelines regime. The Supreme Court has emphasized that
“the Guidelines are now advisory.” Gall, 552 U.S. at 46
(emphasis added). Advisory means advisory.

Second, one may be concerned about the District Court’s
reliance on acquitted conduct when sentencing Matthews. Cf.
United States v. Bell, 808 F.3d 926, 927-28 (D.C. Cir. 2015)
(Kavanaugh, J., concurring in denial of rehearing en banc); id.
at 928-32 (Millett, J., concurring in denial of rehearing en
banc). Matthews was acquitted on all counts except for the one
felon-in-possession charge, but he was then sentenced in
essence as if he had been convicted on all of the counts.
Defendants are understandably unhappy (to say the least) when
that occurs. But that result is the not-uncommon byproduct of
our current federal sentencing regime in which the jury
assesses guilt under a reasonable doubt standard, while the
district court then may find sentencing facts under a lesser
preponderance of the evidence standard. See United States v.
Settles, 530 F.3d 920, 923 (D.C. Cir. 2008).

In that bifurcated system, a district court may find that the
defendant engaged in certain conduct even though the jury
acquitted the defendant of engaging in that same conduct. If
that system seems unsound – and there are good reasons to be
concerned about the use of acquitted conduct at sentencing,
both as a matter of appearance and as a matter of fairness –
Congress and the Supreme Court may fix it, as may individual
district judges in individual cases. See id. at 924; see also Bell,
 13
808 F.3d at 927-28 (Kavanaugh, J., concurring in denial of
rehearing en banc); United States v. Henry, 472 F.3d 910, 918-
22 (D.C. Cir. 2007) (Kavanaugh, J., concurring). But under
current law, the district court may base the sentence in part on
facts found at the sentencing hearing by a preponderance of the
evidence.

Third, one may think that Matthews’ 9-year sentence is
simply too long given the facts in this case as found and
recounted by the District Court. But the problem with reaching
such a conclusion is our deferential substantive standard of
review: abuse of discretion. In light of that deference, it is not
remotely plausible to say that the 9-year sentence in this case
is too long. See Gall, 552 U.S. at 47. Indeed, even Matthews
does not argue as much.

In short, those three policy-based concerns supply no legal
justification for vacating the sentence.

D

Because the District Court fully explained the sentence,
thus satisfying its procedural obligations, and because the 9-
year sentence was substantively reasonable, Matthews’ case
should be an easy affirmance.

Why, then, does the majority opinion vacate Matthews’
sentence?

The majority opinion says that the District Court
committed procedural error by not adequately explaining
Matthews’ sentence. That conclusion is not tenable, in my
view. As described above, the District Court fully explained
its decision and met its procedural obligations.
 14
The majority opinion apparently is not persuaded by the
District Court’s explanation. But the persuasiveness of the
District Court’s explanation is not a procedural issue. It is a
substantive issue – and therefore is not a proper basis for
vacating the sentence in this case, where Matthews did not (and
could not plausibly) raise a substantive unreasonableness
argument.

In any event, because the majority opinion nominally
classifies this case as one of procedural error, and does not
claim that the above-Guidelines 9-year sentence was
substantively unreasonable under the facts and circumstances
here, the District Court on remand may simply re-impose the
same 9-year sentence. All the District Court needs to say is
that it believes, as a policy matter, that the Guidelines range is
too low for Matthews’ offense. See Kimbrough v. United
States, 552 U.S. 85, 101-02, 109 (2007). Or in the alternative,
the District Court can further explain (really, re-explain) why
the facts and circumstances of Matthews’ offense justify a 9-
year sentence. Unless and until this Court says that a 9-year
sentence for Matthews is substantively unreasonable, the
District Court need not change its prior sentence.

***

We should dismiss Adona’s appeal and affirm Matthews’
sentence. I respectfully dissent on those two issues.