United States v. Stewart

WALKER, Circuit Judge,

concurring in part and dissenting in part:

For two years, defendant Lynne Stewart, through artifice and deception, and despite sworn commitments to the contrary made to the government, carried out a criminal plan to transmit instructions from her imprisoned client, a terrorist leader, to his jihadist followers in the Middle East, including, ominously, his withdrawal of support for a fragile cease-fire in Egypt, an action that effectively sanctioned renewed terrorist attacks and indiscriminate loss of human life. The district court termed these deliberate and horrific crimes of terrorism, for which the Sentencing Guidelines recommends 30 years’ imprisonment, “extraordinarily severe criminal conduct.” And yet the district court imposed a breathtakingly low sentence of 2 1/3 years. Because the majority fails to recognize that this sentence trivializes Stewart’s extremely serious conduct with a “slap on the wrist” that is substantively unreasonable, and because the majority fails to appreciate the full extent of the district court’s numerous procedural errors, I respectfully dissent.1

In imposing Stewart’s comparably insignificant sentence, the district judge rejected entirely a major enhancement, established by the Sentencing Commission under Congress’ express command, that applies generally to the “material support” of terrorism. Despite finding that Stewart’s crime was within the enhancement’s “heartland,” Sent’g Tr. 108, the district court found that the “atypicality” of Stewart’s “material support” conduct in “providing] a co-conspirator to a terrorist conspiracy,” Sent’g Tr. 113, justified discarding the terrorism component of Stewart’s crime in its § 3553(a) analysis. But, wholly apart from the fact that the provision of “personnel” falls squarely within the definition of “material support” provided in 18 U.S.C. § 2339A(b), it trivializes Stewart’s conduct to even suggest that enabling a jailed terrorist leader, with enormous sway over his jihadist followers, to actively conspire with others in a scheme to kidnap and kill innocent people somehow mitigates the gravity of the crime. The district court also based its rejection of an enhancement for the material support of terrorism on the fact that Stewart’s conduct did not result in actual injuries or death, even though that fact is rarely, if ever, a mitigating circumstance, much less a reason to jettison the terrorism enhancement altogether in the § 3553(a) analysis.

In addition to failing to make required findings on obstruction of justice based on evidence of Stewart’s double perjury at trial, as the majority recognizes, Maj. Op. *164at 149-50, the district court also all but ignored Stewart’s gross abuse of the fiduciary trust placed in her by the United States government, and, in the face of contrary policy statements by the Sentencing Commission, gave unjustified controlling weight to its mitigating view of Stewart’s age, health, and previous career. Numerous additional errors attended the radical reduction of Stewart’s sentence from the recommended 30 years to 2 1/3 years.

Section 3553(a) of Title 18 of the United States Code, which governed Stewart’s sentence, requires that every sentence take into appropriate account “the nature and circumstances of the offense[,] and the history and characteristics of the defendant”; “reflect the seriousness of the offense”; “promote respect for the law”; and “adequate[ly] deter[ ]” similar conduct in the future. 18 U.S.C. § 3553(a)(l)-(2). The statute also mandates consideration of “the need to avoid unwarranted sentencing] disparities.” Id. § 3553(a)(6). Recognition of the full scope of the district court’s procedural errors makes plain that Stewart’s sentence fails to respect these goals and is so extraordinarily lenient as to manifest an abuse of discretion resulting in a substantively unreasonable sentence.

The majority appropriately acknowledges the fíne reputation of the district court judge, a point with which I concur. And, like the majority, I commend the district court’s management of this complex and difficult trial. However, the majority goes on to suggest, with Judge Calabresi’s concurrence being quite explicit, that because of the district court’s reputation, our review of the Stewart sentencing should be more deferential than would normally be the case. This court has never recognized two classes of judges — those who are so good that their judgment is beyond reproach, and all the rest. Indeed, no judge on any federal court, including the Supreme Court, can lay claim to infallibility. Great respect for a particular judge cannot be a basis for overlooking what, in my view, amounts to a distortion of our sentencing laws. For the foregoing reasons, and others that I will describe, Stewart’s sentence must be vacated and she must be resentenced.

I. The Defendants’ Exceptionally Serious Criminal Conduct

Sheik Abdel Rahman, Stewart’s client, is a dedicated terrorist leader with a large jihadist following in the Middle East, known as the “Islamic Group” among other names, Maj. Op. at 101, and a more discrete following in the United States. See United States v. Rahman, 189 F.3d 88, 104-05 (2d Cir.1999) (per curiam). Abdel Rahman was locked up in federal prison in Rochester, Minnesota, to serve a life sentence imposed in 1996, after he was convicted for both (1) trying to wreak havoc in New York City by blowing up bridges, tunnels, and buildings, and (2) attempting to assassinate Egyptian President Hosni Mubarak. See id. at 148.

For two years, 2000 and 2001, the defendants in this case — Sattar, another jihadist with direct links back to Abdel Rahman’s Egyptian followers; Stewart, Abdel Rah-man’s lawyer; and Yousry, Stewart’s student interpreter — made sure that Abdel Rahman could continue to communicate with his jihadist cohorts. The Department of Justice had employed “Special Administrative Measures” (SAMs) specifically designed to prevent such communications while still enabling an imprisoned terrorist to speak to, and be effectively represented by his attorney. Compliance with the SAMs system largely depends upon the trust placed in the attorney. In accordance with the SAMs, Stewart, repeatedly swore under oath that she would not trans*165mit any non-legal communications to or from Abdel Rahman. She swore falsely.

Undeterred by the SAMs, Stewart, assisted by Yousry, executed a scheme of lies and deception against the government to keep the lines of communication open between Abdel Rahman and Sattar, and, through Sattar, the Egyptian jihadists. These communications included a declaration by Abdel Rahman that he was withdrawing his support for a tenuous ceasefire that, for some time, had aimed at curbing violent attacks by Abdel Rah-man’s followers upon targets in Egypt.2 Stewart even went so far as to deliver this statement to an Arab journalist on Abdel Rahman’s behalf, which resulted in the message’s wide dissemination through the media in the Middle East.

The federal crimes committed by the defendants are numerous. All three conspired to defraud the United States, in violation of 18 U.S.C. § 371. Rahman, Sattar, and other jihadists conspired to kill and to kidnap persons in a foreign country, in violation of 18 U.S.C. § 956(a)(1), (a)(2)(A), and solicited crimes of violence, in violation of 18 U.S.C. § 373. Stewart and Yousry, both individually and in conspiracy, provided and concealed material support to terrorist activity — namely Rah-man’s and Sattar’s conspiracy to kill and to kidnap — in violation of 18 U.S.C. §§ 371, 2339A. Additionally, Stewart made multiple false statements to the Department of Justice and to the Bureau of Prisons, in violation of 18 U.S.C. § 1001. Such behavior constitutes extraordinarily serious, indeed horrendous, criminal conduct; that there was no evidence that Stewart’s conduct ultimately resulted in death and injury to innocent people was due to law enforcement’s diligence, and not to any lack of effort by the defendants or their confederates.

For such crimes, the advisory Sentencing Guidelines effective on November 1, 2000, applicable here, provided for lengthy sentences: life imprisonment for Sattar, 360 months’ imprisonment for Stewart, and 78 to 97 months’ imprisonment for Yousry. A Guidelines recommendation, of course, is just that — a recommendation— and a district judge has considerable discretion to sentence outside of the Guidelines. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). The district court sentenced the defendants well below the recommended Guidelines ranges, lowering Sattar’s sentence from a recommended life term to 24 years, Yousry’s sentence from 78 months to 20 months, and Stewart’s sentence from 360 months to a mere 28 months.

What is immediately striking about Stewart’s sentence is not simply its extraordinary 92 percent reduction from the recommended Guidelines range,3 but also the fact that the actual term of incarceration imposed — 2 1/3 years — is unprece*166dented in convictions for material support of terrorism.4 The Supreme Court has made clear that the Guidelines provide “the starting point and the initial benchmark” for sentencing, and that district judges must “remain cognizant of them” throughout the sentencing process. Id. at 596, 597 n. 6; accord United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc). When faced with an “unusually lenient” sentence such as Stewart’s, we must ensure that the district judge has offered “sufficient justifications” to support his conclusion that the sentence is appropriate. Gall, 128 S.Ct. at 594. Despite the significant discretion accorded to district judges, we retain a limited but important reviewing function: We must review sentences for both procedural and substantive reasonableness.

II. Relevant Legal Standards

Our review proceeds under a “deferential abuse-of-discretion standard,” Gall, 128 S.Ct. at 591, and “a district court’s decision to vary from the Guidelines ‘may attract greatest respect when the sentencing judge finds a particular case [to be] outside the “heartland” to which the Commission intends individual Guidelines to apply,’ ” Cavera, 550 F.3d at 192 (quoting Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 574-75, 169 L.Ed.2d 481 (2007)). However, “closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range fails properly to reflect § 3553(a) considerations even in a mine-run case.” Kimbrough, 128 S.Ct. at 575 (internal quotation marks omitted); accord Cavera, 550 F.3d at 192.

The basic contours of our role are as follows. To evaluate procedural reasonableness, we must ensure that the district court, in imposing a sentence, followed the *167procedural steps prescribed by law. Procedural reasonableness “requires that we be confident that the sentence resulted from the district court’s considered judgment as to what was necessary to address the various, often conflicting, purposes of sentencing.” Cavera, 550 F.3d at 189-90. Thus, a district court commits procedural error when it fails to calculate or incorrectly calculates the Guidelines range, treats the Guidelines as mandatory, neglects to consider the factors set forth in 18 U.S.C. § 3553(a),5 or bases its sentence on a clearly erroneous factual finding. See id. at 190. To avoid procedural error, a district court must also “adequately ... explain its chosen sentence,” including the reasons that the sentence should be different (in this case, extraordinarily different) from that recommended by the Guidelines, id., in order “to allow for meaningful appellate review and to promote the perception of fair sentencing,” Gall, 128 S.Ct. at 597.

We do not categorically proscribe any factor “concerning the [defendant’s] background, character, and conduct,” with the exception of invidious factors. 18 U.S.C. § 3661; see also Cavera, 550 F.3d at 190— 91; United States v. Kaba, 480 F.3d 152, 156-57 (2d Cir.2007). Still, while a district court may “take into account any information known to it,” United States v. Concepcion, 983 F.2d 369, 387 (2d Cir.1992), it does not possess “a blank check to impose whatever sentences suit [its] fancy,” Gavera, 550 F.3d at 191 (quoting United States v. Jones, 531 F.3d 163, 174 (2d Cir.2008)). And a district court, despite its discretion, cannot ignore any of the § 3553(a) factors; it must consider them all, Gall, 128 S.Ct. at 596, including the relevant Guidelines range and “any pertinent Sentencing Commission policy statement,” Cavera, 550 F.3d at 188-89. See also 18 U.S.C. § 3553(a)(4)-(5). As we stated in United States v. Fernandez:

As long as the judge is aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable, and nothing in the record indicates misunderstanding about such materials or misperception about their relevance, we will accept that the requisite consideration [of the § 3553(a) factors] has occurred.

443 F.3d 19, 29-30 (2d Cir.2006) (quoting United States v. Fleming, 397 F.3d 95, 100 (2d Cir.2005) (emphasis from Fernandez omitted)). However, if the district court *168has “ignored or slighted a factor that Congress has deemed pertinent” in § 3553(a), it has abused its discretion. United States v. Taylor, 487 U.S. 326, 337, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988); Gall, 128 S.Ct. at 607 (Alito, J., dissenting); see also id. at 596 (majority opinion) (directing district courts to “consider all of the § 3553(a) factors” (emphasis added)).

In performing substantive reasonableness review, we must determine whether the district court’s sentence is “located within the range of permissible decisions.” Cavera, 550 F.3d at 191 (internal quotation marks omitted). “[W]e take into account the totality of the circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing in mind the institutional advantages of district courts.” Id. at 190. But we must accept that such discretion is not boundless. “In sentencing, as in other areas, district judges at times make mistakes that are substantive.... Circuit courts exist to correct such mistakes when they occur.” Rita v. United States, 551 U.S. 338, 354, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Because the § 3553(a) factors are to “guide sentencing,” the factors also “guide appellate courts ... in determining whether a sentence is unreasonable.” United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). And because “it is fair to assume that [the Guidelines], insofar as practicable, reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives,” Rita, 551 U.S. at 350, 127 S.Ct. 2456, our judgment of a sentence’s substantive reasonableness must be informed by “the extent of any variance from the Guidelines range,” Gall, 128 S.Ct. at 597.

In light of a district court’s wide discretion in sentencing, we do not “presume that a non-Guidelines sentence is unreasonable.” Cavera, 550 F.3d at 190. But when a district judge chooses to step away from the Guidelines, we “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Gall, 128 S.Ct. at 597; accord Cavera, 550 F.3d at 190. There is no “rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” Gall, 128 S.Ct. at 595. Rather, our focus on the degree of deviation is derived from the “uncontroversial” proposition “that a major departure should be supported by a more significant justification than a minor one.” Id. at 597. Whatever the justification, its persuasive power depends in large part on the quality of its reasoning. Accordingly, in order to determine whether the sentencing court acted reasonably, we must examine how it reached its conclusions and determine how persuasive its stated reasons are in supporting its exercise of discretion. See id. at 600-02. If the district judge’s reasoning is sound, “we will not second guess the weight (or lack thereof) that the judge accorded to a given [§ 3553(a) ] factor____ as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented.” Fernandez, 443 F.3d at 32, 34 (emphasis added). We have noted, however, that “unjustified reliance upon any one factor is a symptom of an unreasonable sentence,” United States v. Rattoballi, 452 F.3d 127, 137 (2d Cir.2006), but only a symptom: We must reach our decision by examining the reasoning of the district court in light of the totality of the circumstances, with due deference to the district court’s judgment.

III. Stewart’s Sentence

A. The District Court’s Findings and Conclusions

In sentencing Stewart, the district court began by calculating her sentencing range *169under the Guidelines and found it to be 360 months, the statutory maximum.6 Sent’g Tr. 112. The district court’s Guidelines calculation was clearly appropriate. The majority speculates that the district court might not have fully applied the terrorism enhancement in calculating Stewart’s range, see Maj. Op. at 150-51 n. 37; this speculation is belied by the record and is therefore unwarranted, see Sent’g Tr. 112, 114. Over Stewart’s objection, the district court found that the Guidelines terrorism enhancement, U.S.S.G. § 3A1.4 (2000), applied because she had committed a “federal crime of terrorism.” Sent’g Tr. 107-08. In light of the “ample evidence” showing that Stewart’s “actions were calculated to affect the conduct of the Egyptian government through intimidation and coercion,” the district judge held that her conduct “cannot be found to be outside the heartland of the enhancement.” Sent’g Tr. 108. The district court acknowledged Stewart’s arguments that the enhancement did not apply, and that its effect on her Criminal History Category overstated the seriousness of her past conduct and the likelihood that she would commit further crimes. Sent’g Tr. 108-09. The district court, however, did not waver from its “heartland” determination, and chose to defer consideration of Stewart’s non-application and overstatement claims to its § 3553(a) analysis, instead of determining whether they warranted departures within the Guidelines’ scheme. Sent’g Tr. 109.

The district court also declined to determine whether Stewart’s conduct warranted a Guidelines enhancement for her potential obstruction of justice under U.S.S.G. § 3C1.1 (2000). The government had urged this enhancement based upon Stewart’s alleged double perjury at trial. Sent’g Tr. 111. The district court found “evidence to indieat[e] that [Stewart’s] statements were false.” Sent’g Tr. 111. The court nonetheless chose not to consider the enhancement’s applicability, on the basis that the Guidelines, because of the terrorism enhancement, already provided for the statutory maximum. Sent’g Tr. 111. The district court also noted that it believed a non-Guidelines sentence would be “most consistent with the [§ 3553(a)] factors.” Sent’g Tr. 111-12.

Stewart sought several downward departures under the Guidelines. First, she argued that she deserved a “lesser harms” departure pursuant to U.S.S.G. § 5K2.11 (2000) because she committed her crime in order to avoid a perceived greater harm.7 Rejecting this argument, the district court found that “the circumstances of this case do not diminish society’s interest in pun*170ishing the conduct at issue,” and that “[t]his is not a ease where the interest in punishment or deterrence is reduced.” Sent’g Tr. 109-10. The district court also rejected Stewart’s request for a downward departure under U.S.S.G. § 5K2.20 (2000), which applies to “aberrant behavior.” The district court refused to grant this departure because Stewart’s conduct “was committed over an extended period of time, involved repeated acts of deception, and involve[d] significant planning.” Sent’g Tr. 110. Finally, the district court stated that it would take into account Stewart’s requested departure for “extraordinary medical conditions,” pursuant to U.S.S.G. § 5H1.4, when making its § 3553(a) determination.

Having found that the Guidelines called for Stewart to receive the statutory maximum of 360 months, the district court proceeded to its § 3553(a) analysis. The district court cited what it believed to be “numerous factors that argue in favor of a very substantial downward variance.” Sent’g Tr. 113. First, the district court noted that “this is an atypical case for the terrorism enhancement,” because “there are few, if any, cases where the thrust of the violation was the provision of a co-conspirator to a terrorist conspiracy.” Sent’g Tr. 113. “Moreover,” the district court explained, “there is no evidence that any victim was in fact harmed as a result of the offense as charged.... ” Sent’g Tr. 113. The district court also found the terrorism enhancement’s impact on Stewart’s Criminal History Category to be “dramatically unreasonable.” Sent’g Tr. 113.

The district court thus concluded that application of the full terrorism enhancement, “while correct under the guidelines, would result in an unreasonable result in this atypical case and produce a guideline range about quadruple the range without that enhancement.” Sent’g Tr. 114. Accordingly, the district court proceeded to consider Stewart’s sentence as if there was no terrorism component to her material support. Although the district court reached the appropriate Guidelines calculation, the district court, in its § 3553 analysis, effectively set aside the enhancement, sentencing Stewart as if the Guidelines ranges were 78 to 97 months’ imprisonment without the government’s requested obstruction enhancement, and 97 to 121 months’ imprisonment with that enhancement. Sent’g Tr. 114. The district court then stated that these ranges did not “tak[e] into account the extraordinary personal characteristics of the defendant!,] which also argue strongly in favor of a substantial downward variance.” Sent’g Tr. 114.

Noting that “[t]he personal characteristics of the defendant are intertwined with several of the [§ 3553(a)] factors,” Sent’g Tr. 115, the district court then discussed at length Stewart’s age, health, and career. The district court described Stewart’s career of “representing] the poor, the disadvantaged!,] and the unpopular,” and concluded that it was “no exaggeration to say that Ms. Stewart performed a public service not only to her clients but to the nation.” Sent’g Tr. 115-16. Although acknowledging that, under the Guidelines, “prior good works are not ordinarily relevant” to a defendant’s sentence, the district court noted that even the Guidelines permitted “extraordinary contributions [to] take a defendant outside the Guidelines ra[n]ge.” Sent’g Tr. 116. Accordingly, the district court held that Stewart’s past work warranted a “substantial downward variance.” Sent’g Tr. 116.

The district court then explained that Stewart’s conviction would likely prevent her from ever practicing law again. The court found that this “is itself a punish*171ment,” and “means that the occasion for offenses will be removed and that a lengthy sentence of imprisonment would be an excessive one ... for deterrence and protection of the public.” Sent’g Tr. 116— 17.

The district court noted that Stewart was 67 years old, making “imprisonment ... particularly difficult on her.” Sent’g Tr. 117. And the court found Stewart’s history of overcoming cancer relevant because she had a “statistically significant chance of recurrence” and “suffers from other medical conditions including sleep apnea.” Sent’g Tr. 117. The district court acknowledged that “[mjedical care can be delivered while in prison,” but found it “clear that prison will be particularly difficult for this defendant.” Sent’g Tr. 117.

Despite noting that “age and physical condition are discouraged factors under the guidelines,” the district court concluded that, “[bjecause imprisonment will be particularly hard on the defendant, a lesser sentence than otherwise called for by the advisory guidelines would be sufficient to accomplish the goals of Section 3553(a)(2).” Sent’g Tr. 117-18. But the district court reiterated that there still was “an irreducible core of extraordinarily severe criminal conduct.” Sent’g Tr. 118. The court “point[edj out that the offenses of conviction were serious, involved dishonesty and breach of trust, and had potentially lethal consequences____” Sent’g Tr. 119. However, the district court felt that “the seriousness of the offense d[id] not wipe out the three decades of service and the other characteristics of the defendant and the particular effects of the sentence on this defendant.” Sent’g Tr. 119. Accordingly, “[tjaking all of the [§ 3553(a)] factors into account,” the district court sentenced Stewart to 28 months’ imprisonment. Sent’g Tr. 120.

B. The District Court’s Procedural and Analytical Errors

The majority raises four issues concerning Stewart’s sentence: (1) It does not understand why Stewart’s abuse of her position as a lawyer did not warrant a higher sentence, Maj. Op. at 148^49; (2) it does not understand why Stewart’s sentence was only eight months longer than Yousry’s, despite her significantly more egregious conduct, Maj. Op. at 148-49; (3) it finds that the district court proeedurally erred by ignoring Stewart’s potential perjury, which was relevant to her sentence under § 3553(a), Maj. Op. at 149-50; and (4) without finding error, it notes the district court’s failure to include consideration of whether support of terrorism is an aggravating factor and suggests that the district court reconsider whether Stewart’s sentence was appropriate in view of the offense for which she was convicted; Maj. Op. at 150-51. Accordingly, the majority remands for resentencing, directing the district court to address the perjury issue, consider whether Stewart’s conduct as a lawyer triggers the abuse-of-trust enhancement under U.S.S.G. § 3B1.3, reconsider the extent to which Stewart’s status as a lawyer affects the appropriate sentence, and examine the overall appropriateness of Stewart’s sentence, taking into account the terrorism enhancement, in light of the magnitude of her offense. Maj. Op. at 151-52.

Although I share the majority’s four concerns and its conclusion that resentencing is required, the district court made several substantial errors that the majority refuses to identify as legal errors. Our error correcting function requires us to specify these errors now, when they are evident to the court, to prevent them repetition on remand and in other cases. Notably, because the district court’s stated *172reasons for effectively removing altogether the terrorism object of Stewart’s material support in its § 3553(a)(2)(A) analysis cannot, in fact, mitigate the seriousness of Stewart’s crime, I identify procedural error in the district court’s application of 18 U.S.C. § 3553(a)(2)(A). This grave error in assessing the seriousness of Stewart’s crime, moreover, was compounded by the district court’s failure to account for two aggravating factors plainly relevant under the Guidelines: Stewart’s perjury, and her persistent and blatant abuse of a position of trust to commit her crime. See 18 U.S.C. § 3553(a)(4). While the majority acknowledges these last two procedural errors, its failure to explicitly recognize the error that they compound minimizes the magnitude of the district court’s error in identifying the seriousness of Stewart’s criminal conduct — which, in turn, contributed to other errors.

Without a reasonable assessment of the seriousness of Stewart’s crime, the district court could not reliably determine the sentence necessary to afford adequate general and specific deterrence for crimes of material support of terrorism. See 18 U.S.C. § 3553(a)(2)(B). The district court’s error in assessing the seriousness of Stewart’s crime further precluded a reliable determination of the sentence necessary to avoid unwarranted disparities with similarly situated criminals. See 18 U.S.C. § 3553(a)(6).

Moreover, the district court’s error in assessing the seriousness of Stewart’s crime prompted it to accord Stewart’s age, health, and career mitigating weight that they cannot reasonably bear. The totality of these procedural errors, all originating in a disturbing misunderstanding of the seriousness of Stewart’s conduct, contributed to a sentence that so trivializes the terrorism crimes of conviction as to present a rare occurrence in this court: a sentence that cannot be deemed to fall within the wide range of substantively reasonable choices available to a sentencing judge. Cf Jones, 531 F.3d at 174.

1. Assessing the Seriousness of Stewart’s Crime as Required by § 8558(a)(2)(A)

a. The Terrorism Enhancement

In 1994, Congress expressly mandated that the Sentencing Commission provide for a terrorism enhancement to ensure that crimes of terrorism were met with a punishment that reflects their extraordinary seriousness. See Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322, § 120004, 108 Stat. 1796, 2022. The Commission accordingly created an enhancement that operates both vertically, increasing the offense level to indicate the seriousness of the crime, and horizontally increasing the defendant’s Criminal History Category to reflect the need for deterrence, regardless of the defendant’s prior record. See U.S.S.G. § 3A1.4 (2000).8 As the majority acknowledges, the Sentencing Commission “unambiguously cast a broad[ ] net” when drafting the terrorism enhancement. Maj. Op. at 137-38 (quoting United States v. Mandhai, 375 F.3d 1243, 1247 (11th Cir.2004)). The import of this enhancement “could not be clearer”: It reflects Congress’ and the Commission’s policy judgment “that an act of terrorism represents a particularly *173grave threat because of the dangerousness of the crime and the difficulty of deterring and rehabilitating the criminal, and thus that terrorists and their supporters should be incapacitated for a longer period of time.” United States v. Meskini, 319 F.3d 88, 91-92 (2d Cir.2003) (emphasis added). Under the applicable Guidelines, the enhancement increases the Guidelines sentence for a terrorism crime to a minimum of 210 months or 17 1/2 years; particularly serious crimes, such as Stewart’s, have even higher sentences after the enhancement is applied.9

Despite finding that Stewart’s crime fell within the terrorism enhancement’s “heartland,” the district court, in its § 3553(a) analysis, sentenced Stewart as if there was no terrorism component to her material support — and then proceeded to reduce her sentence considerably further for additional reasons. The district court effectively sentenced Stewart as though she had committed no “federal crime of terrorism,” U.S.S.G. § 3A1.4 (2000), even though the jury and the district court itself had expressly found to the contrary. In an effort to avoid addressing this issue today, the majority suggests that the record could support the conclusion that the district court, in fact, considered the terrorism aspect of Stewart’s crime as an aggravating factor and thus did not commit error by failing to factor the terrorism component of Stewart’s crime into its § 3553(a) analysis. This suggestion has no basis in the record, and the majority does not even begin to explain how the terrorism component could have possibly been an aggravating factor in a sentence that radically reduced Stewart’s sentence from the recommended 30 years to a mere 2 1/3 years.

Whatever the merits of the district court’s disregard of the enhancement on the basis that it overstated Stewart’s criminal history, the district court’s complete elimination of the effect of the enhancement’s vertical component in assessing the seriousness of Stewart’s crime cannot withstand scrutiny in light of the district court’s obligation to impose a sentence sufficient to reflect the seriousness of the crime of conviction. The district court offered two rationales for ignoring the terrorism enhancement’s vertical component when determining Stewart’s sentence under § 3553(a): the “atypical” nature of Stewart’s crime, and the lack of evidence of harm to victims. Neither rationale is sustainable in this case.

Because the district court offered unsound rationales for mitigating the seriousness of the terrorism aspect of Stewart’s crime, effectively sentencing Stewart as if there was no terrorism component to her crime whatsoever, I find error. The error is evident in light of the values inherent in the Guidelines, which provide a very strong signal that crimes in furtherance of terrorism objectives are to be considered exceptionally serious, see U.S.S.G. § 3A1.4 (providing for a 12 offense level increase with a minimum offense level of 32 and minimum Criminal History Category of VI). Jettisoning the terrorism component of Stewart’s crime in its § 3553(a) analysis is particularly inexplicable when considered against the district court’s recognition that Stewart’s conduct fell within the enhancement’s “heartland,” and the fact that terrorism was a required element of the crime for which Stewart was convicted.

Offering its first rationale, the district court stated that Stewart’s conviction was “an atypical case for the terrorism enhancement” despite concluding minutes *174earlier that Stewart’s conduct “cannot be found to be outside the heartland of the enhancement.” Sent’g Tr. 108, 113. The “atypical” heartland conduct, the district court added, was “the provision of a co-conspirator to a terrorist conspiracy.” Sent’g Tr. 113. The district court did not explain this conclusion, nor can the record support a reasonable explanation. At the outset, I question the atypicality of this conduct as a mitigating factor. Congress itself has made plain that giving material support, which is a crime of terrorism under the Guidelines, can be satisfied entirely by the provision of “personnel.” See 18 U.S.C. § 2339A(b) (including the provision of personnel in the definition of “material support”). Indeed, it is absurd and therefore necessarily unreasonable to even suggest that enabling an incarcerated terrorist leader with enormous influence to actively conspire with others in a scheme to kidnap and kill innocent persons somehow mitigates the seriousness of the crime.

Sheik Abdel Rahman was no ordinary “co-conspirator.” He was the head of the snake, a spiritual leader of a violent terrorist group whose words carried the force of a holy writ among his followers, and a man serving a life term for conspiring to bring deadly chaos to New York City. See Rah-man, 189 F.3d at 103-11. After Abdel Rahman’s influence had been sapped by the incarceration and isolation attending his lawful conviction, Stewart’s crime specifically targeted undoing this protection by successfully enabling Abdel Rahman, as the Islamic Group’s spiritual leader, to communicate with his followers and to support the renewal of bloodshed. Abdel Rahman’s unique stature in the terrorist world surely renders Stewart’s crime “atypical,” but this atypicality is an aggravating factor, not a mitigating one, thereby making Stewart more culpable than a defendant engaged in more “typical” material support, such as providing money or a cache of firearms to a terrorist group.

Although material support of terrorism may cover a “multitude of sins,” as Judge Calabresi’s concurrence states, Op. of J. Calabresi at 153-54, this observation does no work in justifying a district court’s complete disregard of the terrorism enhancement. Each “sin” has a critical feature in common; it supports terrorism. And Congress has sent a clear signal that this feature alone warrants enhancement of punishment. See U.S.S.G. § 3A1.4 (providing for a 12 offense level increase with a minimum offense level of 32 and minimum Criminal History Category of VI). That signal was not heeded in this ease. The procedural concern with the district court’s sentence is not with where Stewart’s conduct was placed on the terrorism spectrum: it is with whether that conduct was placed on the spectrum at all. Removing Stewart from the spectrum on account of the nature of her “sins” is particularly egregious given that Stewart’s conduct supported Abdel Rahman, a terrorist at the highest level.

Beyond erroneously finding mitigating atypicality in “providing] a co-conspirator to a terrorist conspiracy,” Sent’g Tr. 113, the district judge offered no further explanation of why Stewart’s “atypical” conduct should lessen Stewart’s culpability or justify ignoring the terrorism object of Stewart’s material support as an aggravating factor in its § 3553(a) analysis, particularly in view of its “heartland” finding. As a result, we are left only with the district judge’s bare assertion of atypicality, which cannot reasonably support the complete rejection of the terrorism enhancement. See Gavera, 550 F.3d at 193.

The district court’s second rationale for giving no effect to the terrorism component of Stewart’s material support — the absence of evidence that Stewart’s terror*175ism crimes resulted in actual harm — is similarly flawed.10 Several points must be made before explaining why this reasoning amounted to procedural error. First, the absence of harm is in no sense attributable to Stewart. Alaa Abdul Raziq Atia, the leader of the violent faction of the Islamic group, including Abdel Rahman, was located and killed by Egyptian authorities after the cease-fire was lifted but before he could act upon it. Second, the district court did not simply consider the absence of harm as a factor to lessen the effect of the terrorism enhancement; it used that fortuity to completely eliminate the effect of the terrorism enhancement in its § 3553(a) consideration, so that Stewart, in substance, was punished as if she had committed no crime of terrorism at all. Third, the district court provided no reason, much less a persuasive one, for why the absence of death or injury should have such a steep mitigating effect in this case.

I take issue with the majority’s failure to identify as procedural error the district court’s deeply flawed reliance on the fortuity that Stewart’s crime did not have the horrific consequences that she and Abdel Rahman intended. In doing so, the majority fails to appreciate the unique nature of terrorism support crimes and the enhanced punishment they warrant as envisioned by Congress. Judge Calabresi’s concurrence mistakenly equates such crimes to ordinary crimes and attempts and erroneously permits the district court to eliminate the enhancement altogether primarily because the intended destruction of innocent life did not come to pass. Op. of J. Calabresi at 155.

Congress and the Sentencing Commission plainly intended for the punishment of crimes of terrorism to be significantly enhanced without regard to whether, due to events beyond the defendant’s control, the defendant’s conduct failed to achieve its intended deadly consequences. See United States v. Abu Ali, 528 F.3d 210, 264-65 (4th Cir.2008). Such intent is plain from the many criminal statutes and Guidelines unrelated to terrorism that specifically account for the level or absence of injury, while the material support statute and terrorism enhancement do not.11 Moreover, Congress amended Stewart’s statute of conviction in 2001 so that causing death increased the statutory maximum from 15 years to life imprisonment.12 Contrary to the suggestion in Judge Calabresi’s concurrence that the achievement of harm, like a two-way elevator, cannot be an aggravating factor unless the absence of such harm is a mitigating factor, Op. of J. Calabresi at 157, Congress has been unmistakably clear that, as a general matter, the achievement of actual harm may aggravate the seriousness of a terrorism crime but that the absence of proven harm does not mitigate such a crime. As such, the district court’s decision to place substantial mitigating weight upon the absence of harm is thus so far contrary to the policy choices of Congress and the Commission *176that it cannot be deemed reasonable under § 3553(a)(1)(A) without persuasive explanation. See Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 575, 169 L.Ed.2d 481 (2007).

Unremarkably, courts routinely, and unflinchingly, apply the terrorism enhancement in the absence of proven harm.13 Here, the Egyptian police caught and killed Alaa Abdul Raziq Atia, a violent co-conspirator, after Abdel Rahman and Stewart withdrew Rahman’s support for the cease-fire, but before Atia could act on that message. This fortuity likely prevented Stewart’s crime from harming victims, but “[flortuity has no bearing on culpability,” United States v. Mitchell, 178 F.3d 904, 910 (7th Cir.1999), nor does it mitigate to any degree the seriousness of Stewart’s conduct.14 Abdel Rahman himself was appropriately given a life sentence even though his plans to assassinate President Hosni Mubarak and to blow up bridges, tunnels, and buildings in New York City were frustrated. See Rahman, 189 F.3d at 124-126. There is no reason why fortuity should have enabled Stewart, Rahman’s supporter, enabler and co-conspirator, to be sentenced as if no terrorism crimes had ever occurred.

In suggesting that the district court’s heavy reliance on the lack of proven harm was reasonable, neither the majority’s opinion nor Judge Calabresi’s concurrence finds support in the case law, and I have found none. Judge Calabresi is reduced to observing that attempted crimes are sometimes treated differently from completed crimes, even when only fortuity separates the two. Op. of J. Calabresi at 154-55. But how the law treats attempts is besides the point. As the majority itself recognizes, material support of terrorism is “a substantive, not inchoate, offense.” Maj. Op. at 119. “This is an independent crime, complete in its most serious form when the [material support] is complete and nothing is added to its criminality by success or consummation, as would be the case, say, of attempted murder.” Spies v. United States, 317 U.S. 492, 498-99, 63 S.Ct. 364, 87 L.Ed. 418 (1943).

The Fourth Circuit recently agreed with my position, vacating a sentence of 30 years’ imprisonment because the district court impermissibly reduced, on the basis of lack of harm, the sentence of a defendant, as here, convicted of conspiracy to provide material support. Abu, Ali, 528 *177F.3d at 264-65. It reasoned that “[t]o deviate on the basis of unrealized harm is to require an act of completion for an offense that clearly contemplates incomplete conduct. By definition, conspiracy offenses do not require that all objects of the conspiracy be accomplished. The Guidelines appropriately recognize this fact: while they normally afford a three-level decrease for non-specific offense conspiracies that were not on the verge of completion, they specifically exclude from this decrease any conspiracies that involve or promote ‘a federal crime of terrorism.’ ” Id. (citing U.S.S.G. § 2X1.1). I completely agree with this statutory conclusion. As the Fourth Circuit aptly stated, we are not relegated to “waiting] until there are victims of terrorist attacks to fully enforce the nation’s criminal laws against terrorism.” Id.

Stewart completed her crime as Congress chose to define it, and the Sentencing Commission, in drafting the terrorism enhancement, elected not to mitigate its seriousness by rewarding a defendant whose crime did not ultimately result in death or serious injury with a reduced sentencing range. It is for this reason that lack of success cannot normally be a mitigating factor even though achievement of harm may be an aggravating factor. Permitting a district judge to require success in harming innocents before he will consider the terrorism component of a crime, particularly in a “heartland” case, is to permit that judge to disregard the fact that material support is itself a fully completed crime.

The majority states that “[fjortuitous events are not categorically irrelevant to the determination of a just punishment nor is their consideration necessarily inappropriate.” Maj. Op. at 140. As a general matter, of course, I agree. In addition, I do not mean to suggest that there can never be a terrorism case in which absence of harm might be an appropriate consideration. Rather, I am suggesting that there is a very broad heartland of cases in which it should not be considered, and further that in this heartland, as here, it is error to use lack of harm as a primary reason for rejecting the terrorism component of a material support conviction. If, for example, an incompetent terrorist satisfies the enhancement by putting a small amount of arsenic into a reservoir for New York’s drinking water with every intention of killing thousands, but without understanding that the quantity is insufficient to cause harm, the complete absence of any practical possibility that the plot could cause harm may well be relevant. But, that is far from the instant case, in which Stewart’s actions were designed to embolden Rahman’s followers to resume a murderous jihad against scores of innocent individuals in Egypt and elsewhere. In this case, it was unreasonable for the district court to place any weight on the fortuitous and attenuated events that saved the potential victims of Stewart’s crime, much less to use it to wipe out the terrorism component of Stewart’s crime in its § 3553(a) analysis, in light of the values signaled by the Guidelines terrorism enhancement.

Judge Calabresi’s attempt to defend the district court’s analysis, by offering a hypothetical comparing the punishment of a terrorist who succeeds in causing harm with the punishment of one who does not misses the mark. See Op. of J. Calabresi at 157. The question at issue is not whether the amount of harm can never be a factor in sentencing. It is whether the terrorist who attempts to detonate a bomb in a public place, with the intent of killing many innocent Americans, should be able to escape the terrorism enhancement altogether simply because his plan happens to fail or be foiled by authorities. The an*178swer, as the Sentencing Commission has made clear, is no. A more persuasive reason than the mere absence of injury must be provided by the district judge who uses that factor to eliminate entirely the effect of the terrorism enhancement. To permit a judge to completely ignore the terrorism component of a material support conviction in a “heartland” case simply because the terrorist did not succeed, without further explanation as to why that case is sui generis, is to overlook the reality that the objective of terrorism is to kill large numbers of innocent people and that maximum deterrence needs to be achieved irrespective of success. See Abu Ali, 528 F.3d at 264-65.

Actual harm is a flawed metric when determining culpability in material support prosecutions. Precisely because of the devastating consequences at stake, it is, and should be, the focus of enforcement authorities to make every effort to prevent those consequences before they occur. When enforcement authorities are successful, it is to their great credit and their efforts should in no sense lessen the deterrent effect of punishment by conferring a sentencing benefit on those whose efforts were thwarted. Indeed, the House Report accompanying the Comprehensive Antiterrorism Act of 1995, which criminalized the material support of terrorism, explained that one of the legislation’s primary goals was to “enhance [law enforcement’s] capability of thwarting, frustrating, and preventing terrorist acts before they result in death and destruction.” H.R.Rep. No. 104-383, at 42 (1995) (emphasis added).

I fully recognize that district judges must develop ways of distinguishing whether and why one form of material support is more or less reprehensible than another, given the broad range of conduct that the material support statute criminalizes, see 18 U.S.C. § 2339A. However, it makes little sense to have the presence or absence of resultant harm to victims be a factor in that determination. Cf. United States v. Whiteskunk, 162 F.3d 1244, 1251 (10th Cir.1998) (finding it “unfair not to recognize and accommodate th[e] varying spectrum of culpability ” when sentencing for a “broad category of conduct” (emphasis added)). Because material support providers often have been, and hopefully will continue to be, apprehended before the crimes that they foster come to fruition, the lack of physical injury is more likely to be the norm than the exception.

Accordingly, the lack of injury here was not a fact of “critical relevance ... distinguishing]” Stewart’s conduct “not only from that of all [her] codefendants, but from the vast majority of defendants convicted of conspiracy in federal court.” Gall, 128 S.Ct. at 600. Giving the absence of harm mitigating significance thus not only fails to recognize the extreme seriousness of such crimes even without achievement of actual harm, it undermines one of § 3553(a)’s express goals: eliminating sentencing disparities. See 18 U.S.C. § 3553(a)(6); United States v. Simpson, 538 F.3d 459, 464 (6th Cir.2008) (noting that focusing on “the defendant’s culpability” instead of fortuity when sentencing “prevents arbitrary disparities” (emphasis added)). The happenstance lack of devastating injury implicit in terrorism crimes generally and Stewart’s in particular simply cannot “bear the weight” the district court assigned to it. Cavera, 550 F.3d at 191. The district court acted unreasonably by using the absence of proven harm to justify completely discarding the terrorism component of Stewart’s crime and to support an unwarranted mitigation of the seriousness of the crime of conviction. See 18 U.S.C. § 3553(a)(2)(A).

My colleagues in the majority also suggest that because Stewart’s terrorism *179crimes preceded the events of September 11, 2001 her view of her own culpability might have been different than would be true after that tragic day. While such a lack of awareness may be true of the ordinary New Yorker, such attribution is ill-suited for Stewart who, as Abdel Rah-man’s lawyer, sat through extensive horrific evidence at his trial, including that the Islamic Group was responsible for the slaughter of scores of innocent tourists at Luxor and the Islamic Group’s plans to bring New York to its knees by blowing up buildings, bridges, tunnels, and by assassinating the Egyptian President while in New York City.

b. The Absence of an Enhancement for Perjury and Obstniction of Justice

After jettisoning the terrorism component of Stewart’s crime in assessing the seriousness of Stewart’s crime of conviction pursuant to § 3553(a)(2)(A), the district court then noted that — with this mitigation — the Guidelines (absent the terrorism enhancement) would provide for a sentencing range for Stewart of either 78 to 97 months or 97 to 121 months, depending on whether the obstruction of justice enhancement applied. I join the majority’s view that the district court’s failure to make any findings regarding obstruction was procedurally unreasonable. Maj. Op. at 149-50. The district court’s reason for not making such findings was that there was no point in doing so, because the terrorism enhancement took the Guidelines sentence to the statutory maximum. After the district court rejected the terrorism component of Stewart’s sentence, however, the obstruction enhancement became relevant to its hypothesis of a revised Guidelines calculation. In addition, as the majority notes, it was error for the district court not to account for Stewart’s potential perjury in the § 3553(a) calculus. See Cavern, 550 F.3d at 190.

c. The Absence of an Enhancement for Abuse of Trust

The majority properly faults the district court for failing to “explain how and to what extent the sentence reflected the seriousness of the crimes of conviction in light of the fact that Stewart was ... a member of the bar when she committed them.” Maj. Op. at 148. The majority asks whether, in that light, “her punishment should have been greater than it was,” and then suggests the obvious answer. Maj. Op. at 149. I agree with the majority’s criticism. As a “guardian[-j of the law,” a lawyer has a special obligation to “refrain from all illegal and morally reprehensible behavior.” New York Code of Professional Responsibility, Preamble, EC 1-5 (effective through March 31, 2009). However, the majority does not go far enough. Stewart was not just a lawyer who committed crimes. And she did not use her professional position simply to gain access to her client and to carry his jihadist messages by criminal means, conduct that, as noted in the previous section of this opinion reflects an extreme seriousness unreasonably overlooked by the district court. Stewart also committed her material support crimes by garnering the trust of the government, and then blatantly violating that trust — a fiduciary obligation that lies at the core of the SAMs system and that protects the right to counsel, even for convicted terrorists.

Under the Guidelines, the abuse-of-trust enhancement applies when a defendant has “abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3 (2000). As the Commentary explains, a position of trust is “characterized by professional or *180managerial discretion,” for “[p]ersons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature,” id. cmt. n. 1 (2000), and “[sjuch persons generally are viewed as more culpable,” id. cmt. background (2000).

The district court failed to explain why an enhancement for abuse of trust is not plainly appropriate in this case. The majority fails to fault the district court on this score because “the government did not specifically invoke section 3B1.3 in its sentencing memorandum.” Maj. Op. at 149 n. 37. But the government explicitly argued for consideration of Stewart’s abuse of trust at the sentencing hearing:

[T]he United States Attorney’s Office who was administering the SAMs trusted Ms. Stewart, put their faith in Ms. Stewart that she was doing what she promised to do. She considered that attorney affirmation that she signed an oath, a promise. Those are her words. And the government accepted that commitment and believed she would honor that commitment, but she violated that trust that was put in her by the United States Attorney’s Office, by the Justice Department, repeatedly violated [it].

Sent’g Tr. 95. As a result, the issue was properly before the district court.

The SAMs placed trust in Stewart because she was a member of the bar appointed under the Criminal Justice Act to represent Abdel Rahman, and she made explicit affirmations to the government specifically required to curb her client’s ability to continue terrorist activities. Only because of the SAMs did Stewart have private access to, and “significantly less supervision” in her contacts with, Abdel Rahman, U.S.S.G. § 3B1.3 cmt. n. 1 (2000), and obtain the freedom she needed to act as his lawyer. Stewart used, or more accurately abused, the trust that the government placed in her to “facilitate] the commission ... of [her] offense,” id., furthering terrorist communications that put innocent lives in jeopardy. Stewart was only given access to Abdel Rahman to discuss legal matters; instead, she engaged in criminal actions that, as she conceded at trial, had nothing to do with any past, pending, or future legal proceedings and were unrelated to the rendering of legal advice. See Trial Tr. 7722 (acknowledging that Abdel Rahman’s “appeals [were] exhausted, with no issue legally on the horizon”).

Stewart’s abuse of trust is particularly significant because it supports the arguments of those who say that our Article III courts, and the constitutional protections they afford, are not suited to terrorist trials. See generally, e.g., Michael B. Mukasey, Civilian Courts Are No Place To Try Terrorists, Wall St. J., Oct. 19, 2009, at A21 (discussing the difficulties of trying terrorists in Article III courts). The SAMs are designed to safeguard those rights, but they must necessarily be conditioned on attorneys respecting the trust placed in them, and cannot be sustained without that trust. Stewart’s conduct thus raises concerns reaching even beyond her dealings with Abdel Rahman. Her criminal acts jeopardize, in a sensitive set of cases, the accused’s right to his choice of independent counsel, which is the right upon which the vindication of all of the accused’s other rights, and, in a larger sense, the right to a trial by an Article III court, depends.15

*181Section 3553(a) requires a district court to consider all of the Guidelines relevant to a defendant’s conduct. See 18 U.S.C. § 3553(a)(4); Cavern, 550 F.3d at 189 (requiring a district court to “conduct its own independent review of the sentencing factors, aided by the arguments of the prosecution and defense”). In sentencing Stewart, the district court mentioned “abuse of trust” as part of the litany of her crimes and noted that Stewart “abused her position as a lawyer” in order to further Abdel Rahman’s terrorist quest. Sent’g Tr. 118. Yet the district court gave no indication that it considered to any extent the depth of Stewart’s abuse of trust as argued by the government, which went beyond simply abusing her position as a lawyer to gain access to Abdel Rahman. By not fully responding to the government’s clear and forceful argument by considering the policy reflected in U.S.S.G. § 3B1.3,16 and accounting for Stewart’s grave abuse of trust in assessing the seriousness of Stewart’s crime and imposing its sentence, the district court erred procedurally.

d. The Impact of These Errors on the Rest of the § 3553 Analysis

The district court’s errors in assessing the seriousness of Stewart’s crime impacted other parts of its § 3553 analysis and, for that reason, must be recognized if any remand in this case is to yield a reasonable sentence. Necessarily, the district court’s unreasonable underappreciation of the gravity of Stewart’s offense, evident from its reasoning despite its statements to the contrary, infected its consideration of “the need ... to afford adequate deterrence to criminal conduct,” 18 U.S.C. § 3553(a)(2), and “the need to avoid unwarranted sentence disparities,” id. § 3553(a)(6), because both factors are calibrated by the seriousness of the offense at stake. More serious crimes require greater deterrence; an unreasonably low view of a crime’s severity will taint a district court’s stance on whether a given sentence sufficiently deters future criminal conduct, both for the specific defendant and for the public at large. In no area can the need for adequate deterrence be greater than in terrorism cases, with their potential for devastating loss of innocent life. Similarly, an erroneous assessment of a crime’s seriousness precludes accurate comparison with equally serious crimes, to avoid unwarranted disparities. Thus, although the district court’s mishandling of the seriousness of Stewart’s crime constitutes reversible error on its own, I believe it also infects other judgments the court made in its mandatory § 3553(a) analysis.

2. The District Court’s Overwhelming Emphasis on Stewart’s Age, Health, and Career

The district judge found that Stewart’s “extraordinary personal characteristics ... argue[d] strongly in favor of a substantial downward variance,” Sent’g Tr. 114, and used that finding to effectively set aside *182the Guidelines and their import.17 To be sure, it was appropriate, indeed required that the district judge consider Stewart’s “history and characteristics” under § 3553(a)(1). But the district court abused its discretion by allowing this factor to overwhelm its consideration of “the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, ... to provide just punishment for the offense, and ... to afford adequate deterrence to criminal conduct,” 18 U.S.C. § 3553(a)(2), and by using it to justify the deep discount of 332 months in Stewart’s sentence. Indeed, given the magnitude of the district court’s error in evaluating the seriousness of the offense in this case, it could not reasonably determine what weight, if any, to assign to personal mitigating factors.

Although we have no specific formula for balancing the § 3553(a) factors, “unjustified reliance upon any one factor is a symptom of an unreasonable sentence,” Rattoballi, 452 F.3d at 137, and here, the district judge’s focus on Stewart’s personal qualities exceeded the bounds of reasonableness in light of the gravity of her crimes. Whatever weight Stewart’s career, age, and physical condition might reasonably warrant, these factors cannot support an unprecedentedly lenient 28-month sentence for what the district court itself termed her “extraordinarily severe criminal conduct.” Sent’g Tr. 118; see supra note 3.

The imposition of a 28-month prison sentence “slighted,” Taylor, 487 U.S. at 337, 108 S.Ct. 2413, the extreme criminality of Stewart’s offense18 and disregarded the manifest purpose of the Guidelines regime: to avoid “unwarranted sentencing disparities,” 18 U.S.C. § 3553(a)(6). See Booker, 543 U.S. at 264-65, 125 S.Ct. 738. The Guidelines “reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives,” Rita, 551 U.S. at 350, 127 S.Ct. 2456, and Stewart’s age, health, and career simply cannot justify the degree to which the district judge deviated from the Guidelines pursuant to § 3553(a).

*183The district court’s apparent disregard of “the need to avoid unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6), is particularly striking in light of the court’s obligation to consider “pertinent [Commission] policy statements],” id. § 3553(a)(5). For example, the Commission has determined that only “an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range,” U.S.S.G. § 5H1.4 (2000) (emphasis added), yet the record indicates that Stewart, despite medical issues, will receive appropriate medical care in prison, and the district judge himself acknowledged that “[m]edieal care can be delivered while in prison,” Sent’g Tr. 117. The district judge, of course, is not bound by Commission policy, but the record nowhere suggests that Stewart’s condition was sufficiently compelling to distinguish her from others in the prison population and to warrant any leniency on that score. As for Stewart’s age, the Commission has concluded that this factor “is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range[, but it] may be a reason to impose a sentence below the applicable guideline range in a case in which the defendant is elderly and infirm....” U.S.S.G. § 5H1.1 (2000). Again, the district court was not bound by this statement. But the district judge’s point that Stewart’s sentence “will represent a greater portion of her remaining life than for a younger defendant,” Sent’g Tr. 117, would apply to any older defendant, and this is not an extraordinary factor, such as being “elderly and infirm,” that can justify excessive leniency. See Rattoballi 452 F.3d at 136 n. 4, 137. The district court cited both Stewart’s age (67 years) and health (sleep apnea; cancer survivor with a chance of recurrence) in concluding that “[a]ny sentence of imprisonment will be particularly difficult for the defendant.” Sent’g Tr. 117. Yet as the majority notes, Maj. Op. at 108-09 n. 9, Stewart herself apparently did not share the district court’s misgivings: “I don’t think anybody would say that going to jail for 28 months is anything anyone would look forward to, but as my clients have told me, T can do that standing on my head.’ ”19 Stewart was not “elderly and infirm,” and I do not see how her age or health could reasonably contribute to such a significant variance from the Guidelines. Advancing age and treatable medical conditions are not normally a ticket to overwhelming leniency, and this case is no different from the norm in that respect.

Similarly, Stewart’s career of public service, as admirable as it seemed to the district court, can only go so far. “[I]t is usually not appropriate to excuse a defendant almost entirely from incarceration because [s]he performed acts that, though in society’s interest, also were the defendant’s responsibility to perform and stood to benefit the defendant personally and professionally.” United States v. D’Amico, 496 F.3d 95, 107 (1st Cir.2007). The district court placed emphasis on Stewart’s providing legal services to “the poor, the disadvantaged[,] and [the] unpopular over three decades,” Sent’g Tr. 115, but as the district judge himself put it, “that credit does not extend to the knowing violation of the law,” Sent’g Tr. 119. Yet given the severity of Stewart’s conduct, this credit, which contributed heavily to a 332-month reduction from the recommended Guidelines range to a 28-month sentence, goes *184further than the district court’s explanation can bear. Giving such excessive weight to Stewart’s resume trivializes the seriousness of her crimes, particularly when her legal career, by leading the government to trust her, is what enabled her to commit these crimes.

Overemphasizing Stewart’s career as a lawyer also fails to “promote respect for the law” or “afford adequate deterrence to criminal conduct” under any reasonable understanding of those mandatory sentencing considerations. 18 U.S.C. § 3553(a)(2). The district court found that Stewart’s likely disbarment “significantly ... mean[t] that the occasion for her offenses will be removed,” Sent’g Tr. 116. This is wrong. One does not need a law license in order to materially support terrorism or to defraud the U.S. government.

In sum, though we will rarely identify procedural error in the weight a sentencing judge assigns to relevant factors, this is one of those rare cases where the record of a defendant’s personal characteristics simply cannot bear the weight necessary to support the challenged sentence. See Cavera, 550 F.3d at 192.

8. Overall Substantive Unreasonableness

I by no means assume that, upon resentencing, Stewart’s sentence will remain at 28 months, but I would be remiss if I did not comment further on Stewart’s current sentence. Unlike the majority, I do not believe that this court must hold off on the question of substantive unreasonableness until the procedural flaws it identifies are remedied. Maj. Op. at 139-40 n. 33. The “informed intuition of the appellate panel” has a place in appellate review. See United States v. Rigas, 583 F.3d 108, 122-23 (2d Cir.2009). And in the rare instance when a sentence imposed by a district court judge makes it plain that his judgment is in stark contrast with the appellate panel’s intuition — as evidenced, for example, by the comparative sentences of co-defendants — judicial efficiency counsels us to identify the substantive error along with procedural error at this time to minimize the need for subsequent appeals. This is not, as Judge Calabresi suggests, the issuing of an advisory opinion. Op. of J. Calabresi at 158-59. Rather it is providing a district court with the full basis for the appellate panel’s remand prior to resentencing.20

*185I stress that it is not the role of the appellate court to compare the district court’s sentence to what the appellate court deems the “correct” sentence. Instead, our task is to ask whether the sentence imposed by the district court is so high or low that it is manifestly unjust or shocks-the-conscious. Id. We are not a mere “rubber stamp.” Id. (citing United States v. Rattoballi, 452 F.3d 127, 132 (2d Cir.2006)). “If we are going to let (district) judges be judges, and trust them to exercise the necessary discretion with sensitivity to the need for coherent sentencing policy, so we should let (appellate) judges be judges as well, performing their traditional function of reining in excess and gradually developing a ‘common law’ of what is and is not sensible.”21 Hon. Gerard E. Lynch, Sentencing After Gall and Kimbrough: Letting Guidelines Be Guidelines (and Judges Be Judges), Ohio St. J.Crim. L. Amici: Views From the Field (Jan.2008), available at http:// osj clblogspot.com.

Even apart from the aggravating circumstances of Stewart’s obstruction of justice, her abuse of trust, and her false statements to the government, Stewart’s conduct was closer to that of Sattar, whose 24-year sentence still represented a sharp reduction from his Guidelines sentence of life imprisonment, than that of Yousry. The district court found that Stewart and Sattar had engaged in conduct that warranted application of the terrorism enhancement and that was “ealculated to influence or affect the conduct of the Egyptian government,” see Sent’g Tr. 24, 28, & 108, but that student interpreter Yousry had not, Sent’g Tr. 143-44.

Nonetheless, Stewart’s sentence was much closer to that of Yousry, even though, as the district court noted, Yousry’s “role in the offenses was subservient to the others involved,” Sent’g Tr. 150. Stewart was given a sentence only eight months greater than that of Yousry, and in relative terms, she was treated far more leniently. Yousry’s conduct, unlike that of Sattar and Stewart, was found by the district court to not warrant the terrorism enhancement; nor did Yousry falsely sign the SAMs or merit consideration for obstruction-of-justice and abuse-of-trust enhancements. As a result, Yousry’s Guidelines range was 78 to 97 months, less than one-third of Stewart’s Guidelines range of 360 months. Yousry’s actual 20-month sentence represented just under one-quarter of the 88-month median of his Guidelines range, while Stewart’s sentence was under one-tenth of her 360-month Guidelines range. Under the Guidelines, more than 260 months separated the sentences of Stewart and Yousry, yet the district court chose sentences that were only eight months apart. Like the majority, I am puzzled by this mismatch, particularly in light of “the need to avoid unwarranted sentence disparities.” 18 U.S.C. § 3553(a)(6).

Because Stewart’s sentence is so out of line with the extreme seriousness of her *186criminal conduct (and, not surprisingly given that fact, with what the Guidelines recommend), notwithstanding the considerable deference due the district court at sentencing, I conclude that Stewart’s sentence is not only procedurally unreasonable, but also substantively unreasonable and an abuse of discretion. The district court’s rationale for the sentence cannot “bear the weight assigned it under the totality of circumstances in the case.” Cavern, 550 F.3d at 191. Indeed, I am at a loss for any rationale upon this record that could reasonably justify a sentence of 28 months’ imprisonment for this defendant under § 3553(a). Accordingly, in addition to the procedural flaws that I have identified, Stewart’s sentence should be vacated as substantively unreasonable and resentencing required on that basis.

. I concur, however, in the majority’s opinion insofar as it upholds the defendants' convictions and directs the district court to resentence Stewart on the basis that it procedurally erred by failing to account for Stewart's likely perjury and obstruction of justice in imposing a sentence. The majority also has determined that, at resentencing, the district court must consider “whether Stewart's conduct as a lawyer triggers the special skill/abuse of trust enhancement under the Guidelines, see U.S.S.G. § 3B1.3 (2000), and reconsider the extent to which Stewart’s status as a lawyer affects the appropriate sentence,” Maj. Op. at 151, but declined to find the district court’s failure in this regard to be a procedural error. For reasons I set forth, this failure was one, among several, procedural errors that the majority failed to recognize.

. The cease-fire's fragility is evident from its inability to stop an Islamic Group faction from slaughtering sixty tourists in Luxor, Egypt in 1997. See Douglas Jehl, 70 Die in Attack at Egypt Temple, N.Y. Times, Nov. 18, 1997, at Al.

. In Gall, the Supreme Court instructed appellate courts not to use, as a general matter, "the percentage of a departure [from the Guidelines] as the standard for determining the strength of the justifications required for a specific sentence." 128 S.Ct. at 595. This proscription recognizes that percentages cannot speak reliably across the Guidelines ranges. See id. (“The mathematical approach also suffers from infirmities of application.”). For low Guidelines ranges, even small sentencing variances can yield large percentages, unfairly exaggerating a district court's action in imposing a non-Guidelines sentence. Id. For high Guidelines ranges, major variances can yield relatively modest percentages, inaccurately representing the significance of the district court’s action. That percentages cannot always accurately measure a variance’s significance does not, however, mean that percentages are always *166irrelevant. When, as here, a variance from the recommended Guidelines range is extraordinarily large both in terms of the actual reduction of time to be served (a 232-month reduction) and the percentage of the reduction (92 percent), these facts taken together strongly signal the need for careful review of the justifications advanced for the challenged sentence. See id. at 597 (observing that appellate courts may reasonably expect a “major departure” from the Guidelines sentencing range to be supported "by a more significant justification than a minor one”).

. In material support convictions after the Guidelines were deemed advisory in United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), district courts have generally imposed sentences of at least ten years per material support count, with considerably higher total sentences. See, e.g., United States v. Aref, No. 04-CR-402, 2007 WL 804814, at *8 (N.D.N.Y. Mar. 14, 2007) (total sentences of 15 years for each of two defendants, with 15 years on each of 16 material support (MS) counts); United States v. Paracha, No. 03-CR-1197, Docket Entry No. 88 (S.D.N.Y. July 21, 2006) (total of 30 years, with 15 years on each of 2 MS counts); United States v. Ali, No. 05-CR-53, Docket Entry No. 397 (E.D.Va. Apr. 17, 2006) (total of 30 years, with 10 years on each of 4 MS counts); United States v. al-Moayad, No. 03-CR-1322, Docket Entry Nos. 197, 205 (E.D.N.Y. Sept. 14, 2005) (total of 75 years, with 15 years on each of 5 MS counts for first defendant; total of 45 years, with 15 years on each of 3 MS counts for second defendant), rev’d on other grounds, 545 F.3d 139 (2d Cir.2008); United States v. Lakhani, No. 03-CR-880, Docket Entry No. 99 (D.N.J. Sept. 12, 2005) (total of 47 years, with 15 years on one MS count); United States v. Gamarra-Murillo, No. 04-CR-349, Docket Entry No. 59 (M.D.Fla. Aug. 9, 2005) (total of 25 years, with 15 years on one MS count); United States v. Rover, No. 03-CR-296, Docket Entry Nos. 600-02 (E.D.Va. July 29 2005) (total of 10 years for each of two defendants, with 10 years on each of 2 MS counts; total of 97 months for third defendant, with 97 months on 1 MS count). Most of these courts chose the maximum material support sentence available to them under federal law: fifteen years. See 18 U.S.C. §§ 2339A(a), 2339B(a)(l).

. Section § 3553(a) states in relevant part:

The [district] court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines — •

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission. ...

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

. The district court calculated Stewart's total Adjusted Offense Level at 41 with a Criminal History Category of VI, yielding a Guidelines "sentencing range" of the statutory maximum of 360 months’ imprisonment.

. Specifically, Stewart claimed that her criminal conduct "was the product of her perception that [Abdel Rahman's] health and well-being were seriously jeopardized by his continued imprisonment in the United States.” Stewart Sent’g Br. 44-45. She explained at trial that it "was important for [Abdel Rah-man's] frame of mind that he have sort of peace of mind about his family, about people he had known when he was in the world, or the letters that were usually sent to him.” Trial Tr. 7720-21. Stewart’s justification for her conduct is patently absurd in light of evidence that she transmitted messages related not to personal family matters but rather to plans to kidnap and kill large numbers of innocent people, and to terrorize even more. The fact that Stewart attempted to justify her potentially devastating criminal conduct by citing her obligations to her client not only highlights her eagerness to corrupt the role of defense counsel, but also casts serious doubt on two of the district court’s purported mitigating factors: (1) the unlikelihood that Stewart would provide material support to terrorism in the future, and (2) the “public service” value of her work as a defense attorney.

. The terrorism enhancement provides:

(a) If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32.
(b) In each such case, the defendant’s criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI.

U.S.S.G. § 3A1.4 (2000).

. As previously noted, the district court calculated the Guidelines “sentencing range" to be the statutory maximum of 360 months' imprisonment.

. Because the district court's flawed reliance on the absence of harm in this case also infected Sattar’s and Yousry’s sentences, I would vacate their sentences and remand for resentencing as to them as well.

. See, e.g., 18 U.S.C. § 2119 (varying maximum penalty for carjacking based on injuries caused); U.S.S.G. § 2A1.5(c)(1) (2000) (increasing offense level for conspiracy or solicitation to commit murder if the offense resulted in the death of a victim); id. § 2A2.2(b)(3) (2000) (varying offense level for aggravated assault based on the victim's injuries).

. See Uniting and Strengthening America By Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub.L. No. 107-56, § 810(c)(2), 115 Stat. 272, 380 (codified as amended at 18 U.S.C. § 2339A(a), 2339B(a)(l)).

. See, e.g., Meskini, 319 F.3d at 91-92; United States v. Garey, 546 F.3d 1359, 1363 (11th Cir.2008) (per curiam); United States v. Benkahla, 530 F.3d 300, 313 (4th Cir.2008) ("Here, ... the terrorism enhancement is doing just what it ought to do: Punishing more harshly than other criminals those whose wrongs served an end more terrible than other crimes.”); United States v. Hale, 448 F.3d 971, 988 (7th Cir.2006) ("That [the defendant] did not commit a federal crime of terrorism is irrelevant; the district court found the purpose of his soliciting [a co-conspirator] was to promote a federal crime of terrorism ....” (emphasis in original)). In footnote 6 of his concurrence, Judge Calabresi correctly points out that Garey resulted in a downward variance from the Guidelines. Op. of J. Calabresi at 156 n. 6. But the district court did not reject the terrorism component of the defendant's crime altogether in its § 3553 calculus, as here. In applying a somewhat reduced enhancement — even for that mentally ill defendant who's crime was telephoning threats to a shopping mall — it imposed a 30 year prison sentence.

. Cf. United States v. Simpson, 538 F.3d 459, 464 (6th Cir.2008) ("It cannot be ... that a crime [of insurance fraud] spanning several years ... is not very serious merely because none of the employer's workers happened to get hurt.”); United States v. Butler, 970 F.2d 1017, 1030 (2d Cir.1992) (Newman, J., concurring) ("Whatever sentence is ultimately imposed on [the defendant], ... [it] should not turn on fact-finding that has little if any relevance to moral culpability.”).

. See Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (“The right ... to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, [we] have laid great emphasis on *181procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.”); Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ("Without [this right], though [a defendant] be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”).

. See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.2008) (en banc) ("[W]hen a party raises a specific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence, then the judge should normally explain why he accepts or rejects the party’s position.” (citing Rita, 551 U.S. at 355-56, 127 S.Ct. 2456)); see also Gall, 128 S.Ct. at 599 ("Had the prosecutor raised the issue, specific discussion of the point might have been in order....").

. A district court, of course, has wide discretion to impose a non-Guidelines sentence after properly calculating the appropriate Guidelines range. Gall, 128 S.Ct. at 597. But because the Guidelines are the touchstone or "starting point” for sentencing, id. at 596, the entire thrust of sentencing below or above the Guidelines is that "any deviation [is] from the Guidelines,” id. at 597, and is to be justified in that context. Because a district judge "must begin [his] analysis with the Guidelines and remain cognizant of them throughout the sentencing process,” id. at 597 n. 6 (emphasis added), it is not permissible simply to set them aside in toto and to impose a sentence that bears no rational relationship to them as if they did not exist. See United States v. Williams, 524 F.3d 209, 215 (2d Cir.2008) (explaining that "displacement of the Sentencing Guidelines at the threshold ... cannot be reconciled with 18 U.S.C. § 3553(a)”). But this is precisely what the district judge did.

. The district court treated Stewart's terrorism and fraud crimes — "particularly grave” offenses, Meskini, 319 F.3d at 92 — much more leniently than what the Guidelines recommend for bank embezzlement, see U.S.S.G. § 2B 1.1 (b)(6)(B) (2000) (recommending a minimum range of 51-63 months for embezzlement “affect[ing] a financial institution” and resulting in over "$1,000,000 in gross receipts”), and on par with the Guidelines recommendations for criminal trademark infringement, see U.S.S.G. § 2B5.3 (2000) (recommending a minimum range of 24-30 months for the manufacture of infringing items exceeding $120,000 in total retail value), conspiring to steal over $5,000 of car parts, see U.S.S.G. § 2B1.1(b)(1)(E), (5) (2000) (15-21 months), burgling a residence and stealing a $2,600 television, see U.S.S.G. § 2B2.1(a)(1), (b)(2)(B) (2000) (27-33 months), and possessing 1.5 grams of crack cocaine with the intent to distribute it, see U.S.S.G. § 2Dl.l(c)(ll) (2000) (27-33 months).

. Ellen Barry, Terrorist Lawyer Gets Two-Year Tenn, LA Times, Oct. 17, 2006, available at http://articles.latimes.eom/2006/oct/l 7/ nation/na-stewartl7 (last visited Aug. 20, 2009); Katie Cornell, Wrist Slap for Smirk Jerk Terror Attorney, N.Y. Post, Oct. 17, 2006, at 4.

. Judge Calabresi’s concurrence also contains the notion, never mentioned earlier in these proceedings, that because Abdel Rah-man’s two other lawyers were not charged with SAMs violations some justification for a lower sentence for Stewart might be found since "there might be even greater disparities between a defendant and other individuals who were not charged at all.” Op. of J. Calabresi at 161-62. Judge Calabresi further suggests that it is not much of an extension to permit district courts to use their sentencing authority "to exercise ... supervision” over discretionary prosecutorial decisions not to bring charges where there is no claim of selective prosecution. Op. of J. Calabresi at 160. Whatever attraction this idea might hold for a law review editor, it should not find a home in the law. Prosecutorial discretion is traditionally exclusive and absolute, subject of course to constitutional limits. See United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); United States v. Molina, 530 F.3d 326, 332 (5th Cir.2008); In re U.S., 503 F.3d 638, 642 (7th Cir.2007). Insulated from judicial review by the separation of powers, United States v. Campo, 140 F.3d 415, 419 (2d Cir.1998), prosecutors acting in good faith, and there is no suggestion to the contrary in this case, base their decisions not to prosecute on many factors (cooperation and truthful accounts, trial dynamics, the quality of evidence, time and resource requirements to name a few). It is enough of a task for a busy district judge to administer justice in the cases actually before the court without initiating its own inquisitorial foray into the prosecutor's office. In re U.S., 503 F.3d at 641 ("Judges in the United States resolve the parties' disputes rather than initi*185ate their own factual inquiries on issues that the parties have not contested; that’s a major difference between adversarial and inquisitorial systems.”) And to what purpose? To possibly reduce an otherwise just sentence?

. Judge Calabresi suggests that substantive unreasonabless should not be determined when tied to procedural error than can be corrected first, although if the two are distinct then it may be "plausible to address the two issues at once” if the procedural error is not harmless. Op. of J. Calabresi at 158-59. But whether the procedural error is harmless is irrelevant to substantive unreasonableness. In any event, he fails to explain the benefit of a "two-step appeal” rule that can result in correcting a good district judge on two separate occasions when one would suffice.