United States v. Whitely

KAREN NELSON MOORE, Circuit Judge,

dissenting in part.

Because I believe that Whitely’s sentence was procedurally unreasonable, I dissent with respect to the majority’s resolution of Whitely’s sentencing challenge. Although this court generally “review[s] supervised release revocation sentences ... under a deferential abuse of discretion standard for reasonableness,” United States v. Bolds, 511 F.3d 568, 575 (6th Cir.2007) (quotation omitted), because Whitely did not object to his sentence after the district court requested any objections not previously raised, review is for plain error. See United States v. Vonner, 516 F.3d 382, 386 (6th Cir.2008) (en banc). To obtain plain-error relief, Whitely must show an “obvious or clear” error that affected his substantial rights and “the fairness, integrity, or public reputation of the judicial proceedings.” Id. (quotation omitted).

A sentence is procedurally unreasonable when, inter alia, a district court “fail[s] to calculate (or improperly calculates]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). As the majority highlights, a district court is not required to state every factor listed in § 3553(a) or even reference the statute when sentencing a defendant, but a district court must “ ‘set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal deci-sionmaking authority.’ ” United States v. Thomas, 498 F.3d 336, 341 (6th Cir.2007) (quoting Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). Thus, “regardless of whether the sentence falls within the Guideline range, we review the sentencing transcript to ensure ... that the sentencing judge adequately considered the relevant § 3553(a) factors and clearly stated [its] reasons for imposing the chosen sentence.” United States v. Liou, 491 F.3d 334, 339 (6th Cir.2007). In the instant case, I believe that the district court plainly erred by failing to consider the § 3553(a) factors and by failing to state clearly its reasons for Whitely’s sentence. And for those reasons, I would vacate Whitely’s sentence and remand for resentencing.

As an initial matter, the district court “never mentioned anything resembling the § 3553(a) factors” during Whitely’s sentencing. Thomas, 498 F.3d at 340. The totality of the district court’s explanation for Whitely’s sentence was as follows:

I don’t find [Whitely] to be credible because of the inconsistent statements that he made before this Court in this Court; therefore, I am going to impose a sentence of 36 months imprisonment, which will be followed by a two-year term of supervised release.

Hr’g Tr. of 4/27/07, at 32. In essence, the record indicates that the district court based the length of Whitely’s sentence on its conclusion that Whitely was a liar and that he had committed the supervised-re*847lease infraction. Contrary to the majority^ contention, I do not believe that the district court’s discussion of Whitely’s conduct in the context of determining whether to revoke his supervised release reflects consideration of the § 3553(a) factors sufficient to render the sentence procedurally reasonable and to withstand plain-error review. See Liou, 491 F.3d at 339 n. 4 (noting the need to vacate a sentence when “the context and the record do not make clear the court’s reasoning” (quotation omitted)). Based on the revocation portion of the transcript, I am willing to assume that, for sentencing purposes, the district court was aware of the nature and circumstances of Whitely’s offense, which is a § 3553(a) factor. Once the district court made the decision to revoke Whitely’s supervised release, however, there was no discussion impheating the remainder of the factors or any mention of what constituted an appropriate sanction for the supervised-release infractions. This circuit has found a sentence procedurally unreasonable when a district court did more. See United States v. Jackson, 408 F.3d 301, 305 (6th Cir.2005) (finding a sentence procedurally unreasonable where “the district court provided a list of various characteristics of the defendant that it considered during sentencing” but the reasoning “did not include any reference to the applicable Guidelines provisions or further explication of the reasons for the particular sentence imposed”).

Whitely offered no arguments as to why he merited a lower sentence in either a sentencing memorandum or in response to the district court’s request for objections to his sentence, as the majority notes. But this does not automatically make any sentence within the Guidelines range procedurally reasonable. “The amount of reasoning required varies according to context,” Liou, 491 F.3d at 338, but in addition to finding procedural error when a district court has failed to address a defendant’s arguments, we have emphasized that procedural error also exists when a “district judge ... simply selected] what the judge deem[ed] an appropriate sentence without [the] required consideration” of § 3553(a). United States v. Jones, 489 F.3d 243, 250-51 (6th Cir.2007). Thus, although the district court was not required to anticipate and address arguments that Whitely never even made, it was required to set forth the reasons for Whitely’s sentence in order to allow this court to determine whether the district court considered the relevant statutory factors and ultimately relied on appropriate considerations in selecting the sentence.3

*848Because the district court apparently failed to consider the § 3553(a) factors and provided absolutely no justification for its sentence at the high end of the Guidelines range, I believe that the district court committed an obvious error. I also believe that the error affected Whitely’s substantial rights such that Whitely meets the plain-error standard, of review. The majority concludes that, even assuming sentencing error, it did not affect Whitely’s substantial rights because “Whitely gives no indication of what he would have argued that might have persuaded the judge to sentence him to less than 36 months.” Maj. Op. at 845. In accord with the forgiving reading of the hearing transcript that allows the majority to conclude that the district court considered the nature and circumstances of Whitely’s offense, however, Whitely’s discussion of how he was “doing well” on his supervised release prior to being arrested in Jamaica, Hr’g Tr. of 4/27/07, at 24, is an argument for reduced sentencing that the district court failed to address and that could have persuaded the judge to opt for a lower sentence.

This is not a case where the district court’s explanation and reference to the § 3553(a) factors was less than “ideal.” Vonner, 516 F.3d at 386. This is a case where there was no explanation, id., and I believe that a sentence without any explanation affects the fairness and integrity of the district-court proceedings. For the foregoing reasons, I would conclude that Whitely’s sentence was plainly procedurally unreasonable and would vacate his sentence and remand for resentencing. I respectfully dissent.

. Whitely concedes that he was sentenced within the Guidelines range. Although the range was not explicitly mentioned during the revocation hearing, because the SVR was filed before the district court, this court is permitted to presume that the district court was aware of the range. See United States v. Polihonki, 543 F.3d 318, 324 (6th Cir.2008). Presumptions can be rebutted, however. See Liou, 491 F.3d at 338-39. Along these lines, it is of note that during the probation officer's colloquy with the district court, the probation officer recommended “a sentence clearly above the guideline range.” Hr'g Tr. of 4/27/07, at 27 (emphasis added). In response, the district court stated, "I take it you [the probation officer] stick with your recommendation of 36 months.” Id. Thirty-six months was at the high end of the 30 to 37 month range, but based on the probation officer's recommendation for an above-Guidelines-range sentence, the record does not make clear whether the district court knew the appropriate range despite being provided with the SVR. This confusion provides additional support for remanding this case to the district court for resentencing. Not only are the justifications for Whitely's sentence inadequate, but also it is not clear based on the exchange between the district court and the probation officer that it is appropriate to presume the district court's knowledge of the Guidelines range from the SVR.