United States v. Vonner

CLAY, Circuit Judge,

dissenting,

joined by MARTIN, DAUGHTREY, MOORE, COLE, and GILMAN, Circuit Judges.

Today, the majority misapplies our holding in United States v. Bostic, 371 F.3d 865 (6th Cir.2004), and ignores the Supreme Court’s command in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Rita v. United States, — U.S. -, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), and Gall v. United States, 552 U.S. -, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), that we review sentences for reasonableness, in a strained effort to uphold a sentencing procedure that “[n]o one would call ... ideal.” United States v. Vonner, 516 F.3d at 386, No. 05-5295 (6th Cir. Feb. 7, 2008). Because Rita and Gall do not require a defendant to object to the procedural or substantive reasonableness of his sentence at the time of sentencing, and indeed suggest that it would be improper to raise such an objection with the district court, I find the majority’s application of plain error review inappropriate. I also consider the sentence in this case to be proeedurally unreasonable, even when analyzed under a plain error standard. Accordingly, I respectfully dissent.

*396I.

In contrast to the majority, I do not believe that plain error is the appropriate standard of review to apply to Vonner’s procedural reasonableness challenge. Because reasonableness is the appellate standard of review, see Gall, 128 S.Ct. at 596; Rita, 127 S.Ct. at 2465, Vonner was not required to object to either the procedural or substantive reasonableness of his sentence at the time of sentencing, and thus should not face plain error review for failure to raise such an objection. Furthermore, given the specific facts of Vonner’s case — his sentencing hearing occurred only three weeks after the Supreme Court handed down Booker and a few months prior to our first explanation of the procedural aspect of reasonableness review— subjecting Vonner to plain error review for his failure to make an objection that he could not have known he needed to make is inconsistent with the most basic principles of fairness and due process.

A.

After finding the provisions of the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq., setting forth the appellate standard of sentencing review to be in violation of the Sixth Amendment, the Supreme Court in Booker directed that appellate courts “review sentencing decisions for unreasonableness.” 543 U.S. at 264, 125 S.Ct. at 767; accord Rita, 127 S.Ct. at 2459; see Gall, 128 S.Ct. at 596. Following that dictate, our circuit has reviewed sentences “for reasonableness which, we have determined, ‘has both substantive and procedural components.’ ” United States v. Thomas, 498 F.3d 336, 339 (6th Cir.2007) (quoting United States v. Jones, 489 F.3d 243, 250 (6th Cir.2007)); accord United States v. Lalonde, 509 F.3d 750, 769 (6th Cir.2007); see also Gall, 128 S.Ct. at 597 (directing appellate courts to review both the procedural and substantive reasonableness of a sentence).

To determine whether a sentence is substantively reasonable, we have generally examined whether the length of the sentence is “sufficient, but not greater than necessary, to comply with the purposes” of sentencing set forth in 18 U.S.C. § 3553(a).1 See Thomas, 498 F.3d at 340; United States v. Liou, 491 F.3d 334, 338 (6th Cir.2007); United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). In contrast, when evaluating procedural reasonableness, we have focused on “the factors evaluated and the procedures employed by the district court in reaching its sentencing determination.” Webb, 403 F.3d at 383. *397We have found that “a sentence may be procedurally unreasonable if the district judge fails to consider the applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration.” United States v. Jones, 489 F.3d 243, 250-51 (6th Cir.2007) (quoting United States n Ferguson, 456 F.3d 660, 664 (6th Cir.2006)). Procedural reasonableness also requires an “articulation of the reasons the district court reached the sentence ultimately imposed.” United States v. Jackson, 408 F.3d 301, 305 (6th Cir.2005); accord Gall, 128 S.Ct. at 597 (requiring the district court to “adequately explain the chosen sentence”); United States v. Bolds, 511 F.3d 568, 580 (6th Cir.2007). We have likewise indicated that “when a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant’s argument and that the judge explained the basis for rejecting it.” Jones, 489 F.3d at 251 (quoting United States v. Richardson, 437 F.3d 550, 554 (6th Cir.2006)); see also Rita, 127 S.Ct. at 2468 (requiring a sentencing judge to “set forth enough to satisfy the appellate court that he has considered the parties’ arguments”). Finally, the Supreme Court has recently confirmed that a district court commits procedural error by “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 128 S.Ct. at 597.

While we have subdivided our analysis of the reasonableness of a district court’s sentence along procedural and substantive lines, our jurisprudence as well as the Supreme Court’s most recent sentencing pronouncements indicate that these two inquiries are simply different aspects of the overall reasonableness review required by Booker. See Gall, 128 S.Ct. at 597 (directing appellate courts to “first ensure that the district court committed no significant procedural error” and “then consider the substantive reasonableness of the sentence imposed under an abuse of discretion standard”); Liou, 491 F.3d at 337 (noting that “the border between factors properly considered ‘substantive’ and those properly considered ‘procedural’ is blurry if not porous”). Indeed, in Webb, our first case to identify these two aspects of reasonableness, we discussed them as part of our general determination of whether the sentence was “unreasonable.” Webb, 403 F.3d at 383. See also Thomas, 498 F.3d at 339-40; Liou, 491 F.3d at 337; United States v. Clark, 469 F.3d 568, 571 (6th Cir.2007). In particular, we indicated that “we read Booker as instructing appellate courts in determining reasonableness to consider not only the length of the sentence but also the factors evaluated and the procedures employed by the district court in reaching its sentencing determination.” Webb, 403 F.3d at 383 (emphasis added).

In short, our review of sentences for reasonableness has consisted of a single analysis in which we evaluate whether the district court: (1) properly considered the § 3553(a) sentencing factors and the parties’ arguments concerning these factors; (2) properly explained the reasons for imposing its chosen sentence; and (3) imposed a sentence of sufficient but not greater length than necessary to accomplish the purposes of sentencing outlined in § 3553(a).

B.

Our Booker obligation to “review sentencing decisions for unreasonableness,” *398543 U.S. at 264, 125 S.Ct. at 767, is not transformed into plain error review when a defendant does not specifically object to the “unreasonableness” of his sentence at the time of sentencing. See United States v. Castro-Juarez, 425 F.3d 430, 434 (7th Cir.2005) (“[0]ur review of a sentence for reasonableness is not affected by whether the defendant had the foresight to label his sentence ‘unreasonable’ before the sentencing hearing adjourned.”). The majority accurately recognizes that “reasonableness is the standard of appellate review, not the standard a district court uses in imposing a sentence.” Vonner, 516 F.3d at 389 (citing Rita, 127 S.Ct. at 2465). We have previously explained:

[A] district court’s job is not to impose a “reasonable” sentence. Rather, a district court’s mandate is to impose “a sentence sufficient, but not greater than necessary, to comply with the purposes” of section 3553(a)(2). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task.

Clark, 469 F.3d at 571 (quoting United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006)); accord Bolds, 511 F.3d at 578-79; United States v. Davis, 458 F.3d 505, 509-10 (6th Cir.2006). A defendant has no duty to challenge the “reasonableness,” either procedural or substantive, of the district court’s sentencing decision at the time it is announced. See Bolds, 511 F.3d at 578 (“In imposing a sentence, neither the district court nor the parties are to focus on the ‘reasonableness’ of the sentence, but rather on the sentence’s ability to accomplish the sentencing purposes in § 3553(a).”). Rather, during the sentencing hearing, the defendant simply must present arguments to the district court regarding the proper application of the § 3553(a) factors, including the advisory Sentencing Guidelines, to the factual context of his case. See Gall, 128 S.Ct. at 596; Rita, 127 S.Ct. at 2465. It is only after the district court has considered these arguments and imposed a sentence that the defendant may challenge the reasonableness of the district court’s sentencing by bringing an appeal to this Court. See Gall, 128 S.Ct. at 597; Rita, 127 S.Ct. at 2465; Booker, 543 U.S. at 264, 125 S.Ct. at 767. Thus, because a defendant is not supposed to object to the “unreasonableness” of his sentence at the time it is imposed, he should not be penalized by plain error review for failing to make such an objection. Indeed, to “insist that defendants object at sentencing to preserve appellate review for reasonableness would create a trap for unwary defendants and saddle busy district courts with the burden of sitting through an objection — probably formulaic — in every criminal case.” Castro-Juarez, 425 F.3d at 433-34.

While Judge Sutton, writing for the majority, seems to recognize this point with respect to Vonner’s substantive reasonableness challenge, see Vonner, 516 F.3d at 389, he nevertheless applies plain error review to Vonner’s procedural reasonableness challenge. See id. at 386. In doing so, Judge Sutton ignores the fact that “procedural reasonableness” and “substantive reasonableness” are simply two aspects of the overall “reasonableness” of Vonner’s sentence which Booker, Rita, and Gall require us, not the district court, to review on appeal. Likewise, Judge Sutton fails to offer any explanation of why, at the time of sentencing, Vonner should have objected to the procedural reasonableness of his sentence but was not required to raise a similar objection to its substantive reasonableness when both these aspects of the unreasonableness of his sentence “became apparent as soon as the court finished announcing its proposed sentence.” Id. Instead, to support his application of plain error review to Vonner’s procedural *399reasonableness challenge, Judge Sutton mistakenly relies on Rule 51 of the Federal Rules of Criminal Procedure and our prior decision in Bostic, which he misconstrues.

Rule 51 permits a party to “preserve a claim of error by informing the court— when the court ruling or order is made or sought — of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection.” Fed.R.Crim.P. 51(b). However, “[i]f a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.” Id.

In Bostic, decided prior to the Supreme Court’s announcement of a new standard of appellate sentencing review in Booker, we confronted the challenge of determining, for purposes of Rule 51, when a party has had a meaningful opportunity to object to the district court’s imposition of a criminal sentence. Bostic, 371 F.3d at 865. In order to ensure that each party would be provided with the opportunity to present arguments to the district court regarding the sentence imposed, “we exereise[d] our supervisory powers over the district court [to] announce a new procedural rule, requiring district courts, after pronouncing the defendant’s sentence but before adjourning the sentencing hearing, to ask the parties whether they have any objections to the sentence just pronounced that have not previously been raised.” Id. at 872. We further stated that “[i]f a party does not clearly articulate any objection and the grounds upon which the objection is based, when given this final opportunity [to] speak, then that party will have forfeited its opportunity to make any objections not previously raised and thus will face plain error review on appeal.” Id. at 872-73.

The proper application of the Bostic rule does not require a defendant, who has already presented arguments concerning the proper calculation of his sentence under § 3553(a), to object to the procedural reasonableness of his sentence at the time of sentencing in order to avoid plain error review on appeal. The purpose of both Bostic and Rule 51 is to ensure that the parties have an opportunity to present their sentencing arguments to the district court and that they do not raise issues that should have been raised below for the first time on appeal. See Bostic, 371 F.3d at 873. Thus, under Bostic, to avoid plain error review on appeal, a party must raise any specific objections it has concerning the district court’s calculation of the applicable advisory Sentencing Guidelines range or its application of the other § 3553(a) factors during the sentencing hearing. However, once a defendant has made these arguments and the district court has imposed a sentence, neither Bostic nor Rule 51 imposes upon the defendant the further obligation to challenge the “procedural reasonableness” of his sentence before the district court. Indeed, as the district court will already have considered arguments from both sides regarding the proper weight to accord each § 3553(a) factor, it is unclear how requiring the defendant to raise a further objection to the district court’s decision to consider some factors more than others will enhance the sentencing process in any meaningful way. See Castro-Juarez, 425 F.3d at 434. Moreover, because reasonableness is the appellate standard of review, see Gall, 128 S.Ct. at 596; Rita, 127 S.Ct. at 2465, the most appropriate forum for a defendant to challenge the reasonableness of the district court’s sentencing determination is not the district court, but rather this Court. See Clark, 469 F.3d at 571. As long as the defendant has previously raised some arguments concerning the proper application of § 3553(a) to his case, he should not be punished on appeal by plain error review *400because he failed to make a further objection in the district court concerning the “procedural reasonableness” of his sentence.

While some of our prior panel cases have concluded that the Bostic rule applies when a defendant fails to challenge the procedural reasonableness of his sentence in the district court, see Vonner, 516 F.3d at 385 (citing cases), those cases are not binding on this Court when sitting en banc. See Salmi v. Sec’y of Health & Human Servs., 744 F.2d 685, 689 (6th Cir.1985). Moreover, in contrast to the reasons articulated above for not requiring a defendant to object to the “procedural reasonableness” of his sentence at the sentencing hearing, those cases provide no rationale to support their conclusion that challenges for “unreasonableness” must be asserted in the district court or abandoned for plain error review on appeal, and thus provide no explanation for the way in which they apply Bostic to Booker reasonableness appeals.

Contrary to what the majority claims, I am not suggesting that we abandon the rule announced in Bostic. Rather, I am merely recognizing the fact that neither our rule in Bostic nor Rule 51 requires a defendant, once his sentence is imposed, to specifically object to the “procedural reasonableness” of his sentence when he has already presented arguments to the district court concerning the proper level of consideration to be given to the § 3553(a) factors. These rules provide for plain error review of sentencing arguments that were not, but should have been, raised before the district court. Thus, if a party fails to present a specific argument for a greater or lesser sentence to the district court, the party may not, on appeal, raise a reasonableness challenge based upon that particular argument or upon the district court’s failure to consider the argument. However, because a party does not have to raise a Booker challenge for either procedural or substantive unreasonableness before the district court, and, in fact, should only properly raise such a challenge on appeal, Bostic does not require that we review procedural reasonableness challenges for plain error when a party does not raise such a challenge with the district court. Accordingly, plain error review should not apply to Vonner’s procedural reasonableness challenge.

C.

Not only is applying plain error review to Vonner’s procedural unreasonableness challenge inconsistent with the Supreme Court’s command that the courts of appeals review sentences for reasonableness, it is also particularly unjust in light of the facts of this case. Vonner was sentenced on February 7, 2005, only 26 days after the Supreme Court announced its holding in Booker, and prior to this Court’s explanation of reasonableness review in Webb. As of that date, we had not yet explained that our review of sentences for reasonableness has both procedural and substantive components, Jones, 489 F.3d at 250, or that procedural reasonableness requires the district court to fully articulate its reasons for imposing the sentence, Jackson, 408 F.3d at 305, and explain why it has rejected the defendant’s arguments for a lower sentence, Richardson, 437 F.3d at 554. Neither had the Supreme Court clarified that, when sentencing, the “judge should set forth enough [of a rationale] to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision-making authority” Rita, 127 S.Ct. at 2468, and “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall, 128 S.Ct. at 597. *401Thus, at the time of Vonner’s sentencing, “when district and appellate courts [as well as defendants] around the country were grappling with the implementation of this new system of sentencing,” Vonner, 516 F.3d at 387, Vonner could not have possibly known how to articulate an objection to the “procedural unreasonableness” of the sentencing, let alone the fact that his failure to raise such an objection would subject him to plain error review on appeal. In this context, punishing Vonner with plain error review for his failure to raise an objection that he did not know (and could not have known) he needed to raise is inconsistent with our obligation to treat litigants fairly.

The majority, however, reads the unfairness of this situation differently. Rather than worrying about a proper resolution of the issues in the case, the majority is more concerned with providing “fairness to the district court.” Vonner, 516 F.3d at 387. Thus, the judges in the majority consider the timing of Vonner’s hearing as a reason for giving the district court a break. They find that, in such a context, any error made by the district court could not have been plain. After all, they suggest, given the post-Booker legal limbo of sentencing, how was the district judge supposed to know the proper sentencing procedures to apply? Yet, if a sitting federal district court judge could not be expected to know that he needed to discuss more fully the reasons for imposing the defendant’s sentence, how would the defendant know that he needed to raise an objection to these deficient procedures at the time of sentencing? The Constitution does not require us to give such a benefit of the doubt to an experienced lawyer sitting on a bench and wearing a black robe. Rather, the Constitution requires us to vigorously protect the rights of the unwary criminal defendant and to ensure that the procedures by which we deprive him of over nine years of his liberty are at least minimally fair. For this reason alone, I must dissent.

II.

Even if the majority were correct in applying the plain error standard of review to Vonner’s procedural reasonableness challenge, I would still dissent because the district court’s failure to address the defendant’s sentencing arguments and its mere lip service to the § 3553(a) factors was plainly erroneous under our precedents and under Rita and Gall. While I would not apply plain error review in this case,2 Vonner has demonstrated that: (1) the district court erred by not adequately considering Vonner’s sentencing arguments and by not explaining its reasons for imposing Vonner’s sentence; (2) this error was plain; (3) this error affected Vonner’s substantial rights; and (4) this error affected the fairness, integrity, or public reputation of the judicial proceedings. See United States v. Stover, 474 F.3d 904, 913 (6th Cir.2007).

Contrary to the majority’s suggestion, the Supreme Court in Gall did not direct appellate courts to give district courts the “benefit of the doubt” regarding the sentencing procedures they employ. Vonner, 516 F.3d at 302. Rather, the Court explicitly directed us to engage in a vigorous review of the sentencing process so as to “ensure that the district court committed no significant procedural error.” Gall, 128 S.Ct. at 597. The Court also clarified that a district court commits a significant and reversible procedural error by “failing to *402adequately explain the chosen sentence.” Id. In particular, the Court stated that “[a]fter settling on the appropriate sentence, [the district judge] must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Id. (emphasis added). The Court affirmed the district court’s sentencing procedure in that case because the district judge had “allowed both parties to present arguments as to what they believed the appropriate sentence should be, considered all of the § 3553(a) factors, and thoroughly documented his reasoning.” Id. at 598 (emphasis added).

Likewise, in Rita, the Supreme Court emphasized that “judicial decisions are reasoned decisions,” and clarified that in order for a sentence to be procedurally reasonable, a “sentencing judge should set forth enough [of a statement of reasons] to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision making authority.” 127 S.Ct. at 2468. In other words, the sentencing transcript must reflect “that the sentencing judge adequately considered the relevant § 3553(a) factors and clearly stated his reasons for imposing the chosen sentence.” Liou, 491 F.3d at 339. “Furthermore, when ‘a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant’s argument and that the judge explained the basis for rejecting it.” Jones, 489 F.3d at 251 (quoting Richardson, 437 F.3d at 554); see Gall, 128 S.Ct. at 599 (finding that, if the prosecution had raised a particular sentencing argument, “specific discussion of the point might have been in order”); Rita, 127 S.Ct. at 2469 (finding that the record made clear “that the sentencing judge listened to each argument” and “considered the evidence and arguments”). As the majority recognizes, “the question is whether ‘[t]he record makes clear that the sentencing judge listened to each argument,’ ‘considered the supporting evidence,’ was ‘fully aware’ of the defendant’s circumstances and took ‘them into account’ in sentencing him.” Vonner, 516 F.3d at 387 (quoting Rita, 127 S.Ct. at 2469).

The record in this case does not satisfy even these simple requirements. First, the record does not demonstrate that the sentencing judge ever considered any of Vonner’s multiple arguments for imposing a sentence lower than the advisory Sentencing Guidelines range. Second, the record is devoid of any reasoned explanation of the sentence imposed.

At the sentencing hearing, Vonner argued that his sentence should be lower than that provided for in the advisory Sentencing Guidelines because of: (1) his traumatic childhood; (2) the mental and emotional impairment to him as a result of his long history of alcohol and drug abuse; (3) the circumstances surrounding his involvement in selling narcotics; (4) the harsh conditions of his pre-sentence confinement; and (5) his cooperation and assistance to the government. Despite Vonner’s lengthy presentation of these arguments, the district court never provided any response to them. Indeed, the only evidence of the district judge’s acknowledgment of these arguments are his brief comments to Vonner indicating that the court “appreciate[d] the apology [Vonner] offered,” “encourage[d]” Vonner to take advantage of the “tools and education” offered in prison to “give [him] certain life skills and lifestyles that will be of benefit to [him] when [his] period of incarceration is over,” and “encourage[d]” Vonner to continue in his cooperation with the government. J.A. at 134-35. These comments do not demonstrate that the district judge properly un*403derstood, let alone considered, Vonner’s arguments. The comments show no appreciation of the reasons why Vonner believed he might be entitled to a lower sentence, nor do they provide any insight into why the sentencing judge found such reasons unpersuasive. Moreover, even if such comments could be read as indicative of the district judge’s understanding of Vonner’s arguments, they would only demonstrate that the judge had understood two of Vonner’s five arguments and they would still not explain the judge’s reasons for rejecting these two arguments. Accordingly, these comments do not sufficiently demonstrate that the sentencing judge actually “considered the parties’ arguments.” Rita, 127 S.Ct. at 2468.

The record also fails to show that the district judge “adequately explained] the chosen sentence.” Gall, 128 S.Ct. at 597. In imposing the sentence, the district judge only provided the following cursory explanation:

With respect to the sentence in this case, the Court has considered the nature and circumstances of the offense, the history and characteristics of the defendant, and the advisory Guidelines range, as well as the other factors listed in 18 United States 3553(a). Pursuant to the Sentencing Reform Act of 1984, it is [sic] judgment of the Court that the defendant, Alvin George Vonner, is hereby committed to the custody of [sic] Bureau of Prisons for a term of imprisonment of a hundred and seventeen months. It is felt that this term is reasonable in light of the aforementioned, in light of the aforementioned factors and is a sentence, furthermore, that will afford adequate deterrent and provide just punishment.

J.A. at 135. This brief and conclusory reference to the § 3553(a) factors offers no explanation of why those factors justify the 117-month prison term imposed. Nor does it offer any clear rationale for imposing such a sentence. Rather than providing “a reasoned basis for exercising [the judge’s] legal decision making authority,” Rita, 127 S.Ct. at 2468, this comment simply pays lip service to statutory factors which Booker, Rita, and Gall require the district court to “consider” when sentencing. Gall, 128 S.Ct. at 596; Rita, 127 S.Ct. at 2468; Booker, 543 U.S. at 259-60, 125 S.Ct. at 764-65. Even the majority admits that the district judge “did not specifically address all of Vonner’s arguments for leniency, and thus it failed to ensure that the defendant, the public, and, if necessary, the court of appeals understood why the trial court picked the sentence it did.” Vonner, 516 F.3d at 386.

In failing to consider Vonner’s arguments or to provide a reasoned explanation of the sentence imposed, the district court violated the procedural reasonableness requirements outlined in our cases and in Rita and Gall, and thus erred. Indeed, the majority does not even attempt to defend the deficient sentencing procedures of the district court. See id. (noting that “[n]o one would call [the district court’s] explanation ideal” and that “a trial court would do well to say more”). Rather, the majority contends that this error was not plain. Id. Yet the majority fails to offer any convincing explanation of how the district court’s failure to articulate its rationale for imposing Vonner’s 117-month sentence was not a blatant violation of Rita’s command that district judges “set forth their reasons” for imposing a sentence, 127 S.Ct. at 2468, and Gall’s requirement that the sentencing judge “adequately explain the chosen sentence.” 128 S.Ct. at 597. The majority also conspicuously fails to consider the impact of the Supreme Court’s recent decision in Gall on our evaluation of the sentencing procedures employed by the district court. Compare *404Vonner, 516 F.3d at 388-92 (finding Gall only to be illustrative with regard to the abuse of discretion standard we apply to reasonableness challenges), with Gall, 128 S.Ct. at 597 (stating that appellate courts “must first ensure that the district court committed no significant procedural error, such as ... failing to adequately explain the chosen sentence” (emphasis added)). Shamelessly ignoring recent Supreme Court decisions, as the majority does, does not make them any less binding on us.

The only justification offered by Judge Sutton to support the majority’s contention that the district court’s error was not plain is his argument that district courts are not required to give reasons for imposing within-Guidelines sentences. See Vonner, 516 F.3d at 387-88. This argument, however, is based on a misreading of 18 U.S.C. § 3553(c) and the Supreme Court’s opinion in Rita. Section 3553(c) expressly provides that the district court, “at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c) (emphasis added). The majority is correct that the statute further provides that, if the sentence is outside the advisory Sentencing Guidelines range, the district court must state “the specific reason for the imposition of a sentence different from that described.” Id. § 3553(c)(2). However, this specificity requirement for non-Guidelines sentences is accompanied by a similar one for within-Guidelines sentences. If the statute is within a Guidelines range which is greater than 24 months, the statute requires the district court to state “the reason for imposing a sentence at a particular point within the range.” Id. § 3553(c)(1). Thus, rather than relieving district courts of the obligation to provide a rationale for the sentence imposed when it is within the Guidelines, § 3553(c) requires the district court to go to even greater lengths to explain why the precise sentence chosen is appropriate.

The majority suggests that the district court in this case should be excused from the statutory requirement that it provide a reason for choosing a sentence of 117 months out of the Guidelines range of 108 to 135 months because Vonner did not argue for anything but a below-Guidelines sentence. See Vonner, 516 F.3d at 386-87. However, the statute does not indicate that giving reasons for imposing a sentence at a particular point within the Guidelines range is only required when the defendant concedes that the Guidelines range is appropriate. Rather, Congress has indicated that district courts “shall” state their reasons for imposing the sentence. 18 U.S.C. § 3553(c). Accordingly, § 3553(c) does not support the majority’s argument.

Likewise the Court’s language in Rita cannot be construed as placing a lesser explanatory burden on district judges when they issue within-Guidelines sentences. The majority misleadingly interprets Rita as “saying that where a judge imposes a within-guidelines sentence, he ‘will normally ... explain why he has rejected ... arguments’ for a different sentence, but insisting that, ‘[wjhere the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so.’ ” Vonner, 516 F.3d at 387 (quoting Rita, 127 S.Ct. at 2468). However, in the part of Rita quoted by the majority, the Supreme Court was not attempting to draw such a distinction between within-Guidelines and outside-Guidelines sentences. Rather the full quote reads: “Where the defendant or prosecutor presents nonfrivolous reasons for imposing a different sentence, however, the judge will normally go further and explain why he has rejected those arguments.” Rita, 127 S.Ct. at 2468. The district court is expected to explain his *405decision to reject such arguments regardless of whether they are for sentences that would be within or outside of the advisory Guidelines range. Thus, contrary to what the majority would mislead one to believe, the Supreme Court was not attempting to distinguish between the procedural requirements for imposing within-Guidelines sentences and the procedures to use for imposing non-Guidelines sentences. Indeed, the Supreme Court expressly noted that it was reserving judgment on the issue of whether “the strength of justification needed to sustain an outside-Guidelines sentence varies in proportion to the degree of variance” until its decision this term in Gall. Id. at 2467. In Gall, the Court rejected such a proportional rule of appellate review and instead clarified that, “[ajfter settling on the appropriate sentence, [the district judge] must adequately explain the chosen sentence” regardless of whether the sentence is within or outside of the advisory Guidelines range. 128 S.Ct. at 597. See also Bolds, 511 F.3d at 581 (“[W]e no longer apply a form of proportionality review to outside-Guidelines sentences, which would require the strength of the justification for a departure to vary in proportion to the amount of deviation from the Guidelines, and find our prior cases applying this rule, see, e.g., United States v. Davis, 458 F.3d 491, 496 (6th Cir.2006), to have been effectively overturned by Gall.”).

Despite the majority’s attempts to obfuscate both Congress’ and the Supreme Court’s language, both have clearly indicated that a district judge has an obligation to articulate the reasons for imposing the chosen sentence regardless of whether the sentence is within or outside the advisory Sentencing Guidelines range. By failing to satisfy this obligation the district committed an error that was plain. Moreover, this error affected Vonner’s substantial rights by failing to provide him with due process when taking away over nine years of his liberty. Finally, this error affected the fairness, integrity, and public reputation of the judicial proceedings. The district court’s failure to provide any reasoned explanation for the sentence it imposed undermines the public’s confidence in the fairness of our criminal justice system. As the Supreme Court recognized in Rita: “Confidence in a judge’s use of reason underlies the public’s trust in the judicial institution. A public statement of those reasons helps provide the public with the assurance that creates that trust.” 127 S.Ct. at 2468. By neglecting to specify a rationale for its decision, the district judge failed to provide the public, Vonner, or this Court with the assurance that its judgment was in fact a reasoned one.

For all these reasons, I would find that Vonner’s procedural reasonableness challenge should survive the majority’s inappropriate application of plain error review.

III.

Today’s decision is yet another attempt to undercut the Supreme Court’s holding in Booker that the Sentencing Guidelines are no longer mandatory. By upholding a sentencing procedure in which the district court simply imposed a sentence from within the advisory Guidelines range without any explanation of its rationale for concluding that the sentence was sufficient but not greater than necessary to comply with the sentencing goals in § 3553(a), the majority encourages district courts to ignore the Supreme Court’s command in Booker, Rita, and Gall that judges respond to the defendant’s sentencing arguments, take into account all of the sentencing considerations in § 3553(a), and explain why they have chosen to impose the particular sentence. Rather than pro*406moting good sentencing practices by requiring district judges take their sentencing responsibility seriously, the majority rewards district courts for paying mere lip service to the § 3553(a) factors. In doing so, the majority moves us towards a “magic words” approach where a district court’s imposition of a within-Guidelines sentence will never be overturned on procedural unreasonableness grounds as long as the district court, when sentencing, states that it “has considered the nature and circumstances of the offense, the history and characteristics of the defendant, and the advisory Guidelines range, as well as the other factors listed in [18 U.S.C. § 3553(a)].” J.A. at 135. Moreover, by transforming Bookers required reasonableness review into mere plain error review when a defendant does not raise a separate objection to the “procedural reasonableness” of his sentence at the time of sentencing, the majority evades the responsibility, imposed on us by Gall, to ensure that a defendant is afforded the opportunity to have his sentencing arguments considered and is given an adequate explanation of the reasons for the deprivation of his liberty. See Gall, 128 S.Ct. at 597.

Because I cannot join the majority in its abdication of our role of providing guidance to the lower courts as to proper sentencing procedures and because I find the majority’s application of plain error review inconsistent with the Supreme Court’s command that we “review sentencing decisions for unreasonableness,” Booker, 543 U.S. at 264, 125 S.Ct. at 767, I respectfully dissent.

. Section 3553(a) directs sentencing judges to consider the following factors when imposing sentences:

(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.

18 U.S.C. § 3553(a) (formatting altered).

. I would simply apply our post-Boo/cer reasonableness jurisprudence to find Vonner’s sentencing procedurally unreasonable and would accordingly remand to the district court for resentencing.