United States Court of Appeals
For the First Circuit
No. 05-1268
UNITED STATES OF AMERICA,
Appellee,
v.
LENNY JIMÉNEZ-BELTRE,
a/k/a TONY PÉREZ, HÉCTOR CINTRÓN,
HÉCTOR GUZMÁN-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Selya, Lynch, Lipez, and Howard,
Circuit Judges.
James B. Krasnoo, by appointment of the court, with whom Law
Offices of James B. Krasnoo was on brief for appellant.
Peter Goldberger, Joshua Dratel, Charles W. Rankin, Rankin &
Sultan, and Carmen D. Hernandez Gil on brief for The National
Association of Criminal Defense Lawyers and the Criminal Justice
Act Board for the United States District Court for the District of
Massachusetts, Amici Curiae.
Judith H. Mizner, Assistant Federal Public Defender,
Massachusetts Federal Defender Office, Amy Baron-Evans, National
Sentencing Resource Counsel, Federal Defender Office, Miriam
Conrad, Federal Public Defender, Districts of Massachusetts, New
Hampshire and Rhode Island, Joseph C. Laws, Federal Public
Defender, District of Puerto Rico, and David Beneman, Federal
Public Defender, District of Maine, on brief for the Federal Public
Defenders for the Districts of Massachusetts, New Hampshire and
Rhode Island, the District of Puerto Rico and the District of
Maine, Amici Curiae.
Cynthia A. Young for appellee.
Michael J. Sullivan, United States Attorney, and Paul G.
Casey, Assistant United States Attorney on brief for appellee.
Paula D. Silsby, United States Attorney, Margaret McGaughey,
Assistant United States Attorney, H.S. Garcia, United States
Attorney, Nelson Perez-Sosa, Assistant United States Attorney,
Robert Clark Corrente, United States Attorney, Donald C. Lockhart,
Assistant United States Attorney, and Patty Merkamp Stemler, Chief,
Appellate Section, Criminal Division, United States Department of
Justice, on supplemental/en banc brief for appellee.
____________________
OPINION EN BANC
March 9, 2006
BOUDIN, Chief Judge. A year has now passed since the
Supreme Court's decision in United States v. Booker, 125 S. Ct. 738
(2005), and courts are being asked to review sentences imposed
under the post-Booker advisory guidelines regime. See United
States v. Pho, 433 F.3d 53 (1st Cir. 2006); United States v.
Robinson, 433 F.3d 31 (1st Cir. 2005). We have heard this case en
banc to provide stable guidance in this circuit for the
determination and review of post-Booker sentences.
The facts of the present case are generally not in
dispute. Cambridge, Massachusetts, police arrested Lenny Jimenez-
Beltre on drug trafficking charges in March 2000. He pled guilty
to distributing cocaine and doing so within 1,000 feet of school
property. He was sentenced to two and one-half years of
imprisonment and, on March 19, 2002, released and deported to the
Dominican Republic.
Without the necessary permission from the Attorney
General or Secretary of Homeland Security, 8 U.S.C. § 1326 (2000),
Jimenez-Beltre unlawfully re-entered the United States. On October
1, 2003, he was arrested on drug charges (of which he was later
convicted) by the Fitchburg, Massachusetts, police. Thereafter,
he was indicted under 8 U.S.C. § 1326 by a federal grand jury for
illegal re-entry into the United States. On October 20, 2004, he
pled guilty to the charge.
-3-
The district court held the sentencing hearing on
February 15, 2005, just over a month after Booker had been handed
down. At sentencing, the district court began, with clarity much
appreciated by us, with an explanation that it would first
calculate the guideline sentence, then determine whether departures
were warranted under the guidelines, and finally determine whether
a non-guideline sentence was warranted by the relevant factors set
forth in 18 U.S.C. § 3553(a) (2000). The court offered this
concise summary:
I'm certainly treating the Guidelines as
advisory, not mandatory, but I feel I need to
start someplace, and that's where I'm going to
start. I do intend to give them substantial
weight, but they don't have controlling
weight; and if there are clearly identified
and persuasive reasons why I should not impose
a Guidelines sentence, I will consider those
and impose a sentence accordingly.
The judge then calculated the guideline sentence. For
Jimenez-Beltre's crime, the base offense level is eight. U.S.S.G.
§ 2L.1.2(a). The court added sixteen levels because Jimenez-Beltre
had "previously [been] deported . . . after . . . a conviction for
a felony that is . . . a drug trafficking offense for which the
sentence imposed exceeded 13 months." Id. § 2L.1.2(b)(1)(A)(i).
Three levels were subtracted for acceptance of responsibility, id.
§ 3E1.1(b), making the adjusted offense level twenty-one.
For criminal history, the pre-sentence report assigned
Jimenez-Beltre five points, placing him in category III. Jimenez-
-4-
Beltre asked the district court to depart on the ground that he did
not have an extensive criminal history and that the Fitchburg
offense had involved a small quantity of drugs. The district court
denied the request for a departure, saying that the amount was
uncertain but the offense had been a felony and the court deemed
the matter to be within the guideline "heartland."
Jimenez-Beltre also argued that the guideline sentence
should not control, saying among other things that "fast-track"
federal courts in the Southwest gave lower sentences in comparable
cases, that he had already served some period in the custody of
state and immigration authorities before being turned over for
federal prosecution, and that re-deportation was in itself
punishment and would protect the public.
The district court, after calculating the guidelines
range and considering the above-described arguments, said that it
recognized that the guidelines were only advisory but saw "no
clearly identified and persuasive reasons to impose a nonguidelines
sentence." The guideline range, for level 21 and criminal history
category III, was 46 to 57 months. The court sentenced Jimenez-
Beltre to 46 months, saying that "a higher sentence is not
necessary to achieve the various goals of sentencing." This appeal
followed, primarily urging that the sentence is unreasonable.
At the threshold, we face the government's position that
a sentence within the guidelines is inherently unreviewable on
-5-
appeal on grounds of "unreasonableness." The argument is based on
the structure of the review provisions of the statute governing
appeals from sentences, 18 U.S.C. § 3742(a), and on the analogy to
the case law governing review of district court decisions in the
pre-Booker era; the case law, it will be recalled, precluded review
of a refusal to depart unless the district court misapprehended its
authority. See United States v. Ruiz, 536 U.S. 622, 627 (2002).
Whatever its logic (a matter on which reasonable people
can differ), the government's position in this court is hopeless.
A majority of Justices said explicitly in Booker that sentences
would be reviewable for reasonableness whether they fell within or
without the guidelines,1 and for us that is the end of the matter.
The government says that this was merely "dicta"; but "considered
dicta . . . of recent vintage" are effectively binding on us.
Rossiter v. Potter, 357 F.3d 26, 31 (1st Cir. 2004) (quoting McCoy
v. MIT, 950 F.2d 13, 19 (1st Cir. 1991)).
Central to the merits of this appeal is the question of
what role the advisory guidelines should play in a post-Booker
sentence. To begin with the conclusion, the guidelines continue in
our view to be an important consideration in sentencing, both in
the district court and on appeal, which should be addressed in the
1
Justice Breyer's remedial decision for five Justices is
unqualified on this point, Booker, 125 S. Ct. at 765, and Justice
Scalia's dissent agrees that this is what is entailed by the
majority position, id. at 792-93.
-6-
first instance by the sentencing judge. We do not find it helpful
to talk about the guidelines as "presumptively" controlling or a
guidelines sentence as "per se reasonable,"2 and believe that the
district judge's adroit one-paragraph summary (quoted above) is a
more useful compass.
Our conclusion is rooted in both parts of the Booker
decision. In holding the mandatory regime unconstitutional, the
flaw discerned by the five-Justice majority was that mandatory
guidelines created mini-crimes requiring jury findings. Booker,
125 S. Ct. at 750-52. Although making the guidelines "presumptive"
or "per se reasonable" does not make them mandatory, it tends in
that direction; and anyway terms like "presumptive" and "per se"
are more ambiguous labels than they at first appear.
At the same time, the guidelines cannot be called just
"another factor" in the statutory list, 18 U.S.C. § 3553(a) (2000),
because they are the only integration of the multiple factors and,
with important exceptions, their calculations were based upon the
actual sentences of many judges, Booker, 125 S. Ct. at 766-67; 28
2
Several circuits have used the presumption language. United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); United
States v. Tobacco, 428 F.3d 1148, 1151 (8th Cir. 2005); United
States v. Williams, 2006 WL 224067, at *1 (6th Cir. Jan. 31, 2006);
United States v. Green, 2006 WL 267217, at *5 (4th Cir., Feb. 6,
2006). The per se label has also been urged, United States v.
Webb, 403 F.3d 373, 385 (6th Cir. 2005) (Kennedy, C.J., concurring
in part and dissenting in part), but has thus far been rejected,
Webb, 403 F.3d at 385 n.9. United States v. Talley, 431 F.3d 784,
786-87 (11th Cir. 2005); United States v. Cunningham, 429 F.3d 673,
676 (7th Cir. 2005).
-7-
U.S.C. § 994(o). The Sentencing Commission is also an expert
agency charged by Congress with the task of promulgating guidelines
and keeping them up to date. 28 U.S.C. § 994(c). In its remedial
opinion, the Supreme Court has stressed the continuing role of the
guidelines in promoting uniformity and fairness. Booker, 125 S.
Ct. at 757-64.
Yet the guidelines are still generalizations that can
point to outcomes that may appear unreasonable to sentencing judges
in particular cases. Some of the guidelines in particular cases
were not reflections of existing practice but were deliberate
deviations or turned tendencies into absolutes. Others have been
affected by directions from Congress. See, e.g., Pho, 433 F.3d at
61-63. Booker's remedial solution makes it possible for courts to
impose non-guideline sentences that override the guidelines,
subject only to the ultimate requirement of reasonableness.
Accordingly, at sentencing, the district court must
continue to "consider the Guidelines 'sentencing range.'" Booker,
125 S. Ct. at 764 (quoting 18 U.S.C. § 3553(a)(4)). In most cases,
this will mean that the district court will have to calculate the
applicable guidelines range including the resolution of any factual
or legal disputes necessary to that calculation--unless they do not
matter--before deciding whether to exercise its new-found
discretion to impose a non-guidelines sentence. Robinson, 433 F.3d
at 35.
-8-
In sum, we agree with the district court's general
approach, quoted above, and we find very helpful the district
court's sequential determination of the guideline range, including
any proposed departures, followed by the further determination
whether other factors identified by either side warrant an ultimate
sentence above or below the guideline range. To construct a
reasonable sentence starting from scratch in every case would
defeat any chance at rough equality which remains a congressional
objective.
This brings us to Jimenez-Beltre's detailed objections on
appeal, which focus upon the district court's treatment of various
factors cited by Jimenez-Beltre at sentencing as reasons urged for
a sentence below the guideline range. To sum up again at the
outset, our emphasis in reviewing such claims will be on the
provision of a reasoned explanation, a plausible outcome and--where
these criteria are met--some deference to different judgments by
the district judges on the scene.
Whether the sentence falls inside or outside the
applicable guideline range, it is important for us to have the
district court's reasons for its sentence; 18 U.S.C. § 3553(c) so
requires for sentences outside the guidelines range (or within it
if the range is broad) and this is even more important in the more
open-ended post-Booker world. Yet a court's reasoning can often be
-9-
inferred by comparing what was argued by the parties or contained
in the pre-sentence report with what the judge did.
Assuming that the district court correctly calculates the
guidelines range and its reasoning is express or can be discerned,
the remaining question on appellate review is one of reasonableness
which Booker expressly held to be reviewable. Often, there can be
more than one reasonable way of assessing a factor and more than
one reasonable result. Assuming a plausible explanation and a
defensible overall result, sentencing is the responsibility of the
district court.
In this case, Jimenez-Beltre asked the district court for
a below-guidelines sentence on several grounds, four of which are
pressed on appeal. The first is that a below-guidelines sentence
was necessary to avoid the "unwarranted sentencing disparity," 18
U.S.C. § 3553(6), between those districts that have so-called
"fast-track" systems for prosecuting and sentencing illegally re-
entering aliens and other districts, like Massachusetts, that do
not.3
This certainly permits disparities but they are the
result of a congressional choice made for prudential reasons,
3
Under these procedures, meant to cope with heavy case loads
in border courts, Congress has authorized special downward
departures for defendants who waive certain procedural rights in
districts where the Attorney General has authorized "fast-track"
procedures. United States v. Martinez-Flores, 428 F.3d 22, 24 (1st
Cir. 2005).
-10-
implicitly qualifying the general aim of equality. The impact is
probably more modest than the decision of a United States Attorney,
in a district with a heavy case load, to forgo entirely some
prosecutions that would routinely be brought in other districts.
Whether it would even be permissible to give a lower sentence on
the ground sought is itself an open question. Martinez-Flores, 428
at 30 n.3.
In any event, the district court ruled that the defendant
had not furnished a factual basis for assessing the extent of the
disparities or provided a reason why to take them into account. As
with departures, the proponent of a factor that would work in the
proponent's favor has to provide the basis to support it. United
States v. Derbes, 369 F.3d 579, 582 (1st Cir. 2004). In declining
to alter the sentence on this ground, the district court did not
act unreasonably.
Jimenez-Beltre's second argument for a lower sentence was
based on his claim that his prior, predicate drug conviction
involved only two bags of cocaine and was therefore "minor"
compared to larger quantities handled by other alien drug dealers.
The district court did not credit Jimenez-Beltre's (unsworn)
statement as to the amount and concluded--permissibly in our view--
that it was enough to adhere to the guidelines sentence that the
predicate conviction was for felony drug dealing and carried a
sentence of the requisite length.
-11-
Next, Jimenez-Beltre asked the district court to adjust
the sentence to account for the time that he spent in state custody
and that of the federal Immigration and Customs Enforcement ("ICE")
authorities. The district court quite reasonably disregarded the
time spent in state custody--apparently five weeks; Massachusetts,
a "separate sovereign" (as the district court pointed out), was
holding Jimenez-Beltre in aid of new drug charge, not illegal re-
entry.
As for the time Jimenez-Beltre spent in ICE custody, it
amounted to 30 days, and he was sentenced at the bottom of the
guidelines range whose breadth was 11 months. Jimenez-Beltre does
not claim that he was legally entitled to an automatic credit under
the guidelines. The district court was uncertain whether the 30-
day period was an appropriate basis to adjust the sentence, decided
not to do so and--we conclude--did not act unreasonably.
Next, Jimenez-Beltre says that the district court should
have given a non-guidelines sentence to account for his immediate
detention and likely future deportation once released from prison.
This, said Jimenez-Beltre, made a normal guideline sentence
unnecessary for deterrence or public protection and was a pertinent
factor under 18 U.S.C. § 3553(a)(2). Framed as a generic argument,
this is unpersuasive on its face.
The crime in question--re-entry after deportation--is
ordinarily going to be committed by persons who will be deported
-12-
after their sentences have been served. The guideline sentencing
range was likely predicated on this understanding. And Jimenez-
Beltre, who himself did re-enter after deportation, is hardly in a
good position to argue for a shorter sentence on the ground that
another deportation of him will protect the public adequately
against yet another repetition.
Finally--and independent of the reasonableness of his
sentence--Jimenez-Beltre argues that, under the Sixth Amendment,
the fact and nature of his prior state conviction should have been
proved to a jury beyond a reasonable doubt. The Supreme Court held
to the contrary in United States v. Almendarez-Torres, 523 U.S. 224
(1998), but Jimenez-Beltre contends that Almendarez-Torres has been
"eviscerated" by the Supreme Court's more recent decisions in
Apprendi v. New Jersey, 530 U.S. 466 (2000), Booker, and Shepard v.
United States, 544 U.S. 13 (2005).
Whatever the continuing viability of Almendarez-Torres,
we have previously held that we are bound to follow it until it is
expressly overruled, United States v. Ivery, 427 F.3d 69, 75 (1st
Cir. 2005), and we see no reason to revisit that conclusion here.
As it happens, Jimenez-Beltre admitted his prior conviction which,
under Booker and Blakely v. Washington, 542 U.S. 296 (2004), would
avoid the constitutional issue in this case even if Almendarez-
Torres were to be overturned.
-13-
Affirmed.
Concurring and dissenting opinions follow.
-14-
TORRUELLA, Circuit Judge (Concurring). Since Booker was
decided, district courts have been forced to navigate murky waters.
I write separately to articulate my reasons for joining the
majority's central holding, for the benefit of district judges who
must interpret and apply it to the difficult task of sentencing
defendants in their courtrooms.
I am in agreement with the majority opinion to the extent
that it establishes a post-Booker sentencing regime wherein the
guidelines enjoy no presumption of reasonableness. I also agree
that, procedurally, district judges should first calculate the
guideline range including any proposed departures, as they did
before Booker was decided.
Further, I agree with the majority opinion to the extent
that it requires the district court to explain the reasoning for
the sentence imposed, whether it falls within the guidelines range4
or outside of it. I do not think the majority's suggestion that a
district court's reasoning can "often be inferred" should be
interpreted as an exception to the rule set forth in 18 U.S.C.
§ 3553(c) that the district court must "state in open court the
reasons for its imposition of the particular sentence." In other
words, the district court's obligation to explain is not excused by
our discretion to discern its reasoning from the record on appeal.
4
Of course, there is no statutory obligation to explain a
sentence within the guidelines range where the applicable range is
less than 24 months. 18 U.S.C. § 3553(c)(1).
-15-
Finally, I think it is of critical importance that the
majority opinion be understood to reinforce our commitment to the
statutory requirement that, in all cases, district courts must
impose sentences that are "sufficient, but not greater than
necessary" to effectuate the goals of criminal punishment, as
articulated in 18 U.S.C. § 3553(a). In articulating its reasons
for imposing any sentence, the district court must make clear
reference to this central principle.
As the case law develops, the standards we announce today
will evolve. District courts will more substantively contribute to
the development of our jurisprudence and less frequently confront
remand if they comply with our instructions to make sentencing as
transparent a process as possible.
Concurrence follows.
-16-
HOWARD, Circuit Judge, concurring in part and concurring
in the judgment. The Supreme Court's opinions in Booker left many
questions unanswered. While my views overlap to some extent with
those of the majority, I write separately to emphasize that
sentencing courts are still to accord the guidelines substantial
weight and that sentences outside the guidelines sentencing range
are reasonable only so long as and only to the extent that they can
be said to comport with the Sentencing Reform Act of 1984 (which
remains a legitimate expression of congressional purpose post-
Booker). Moreover, I have come to accept the government's position
that sentences within the guidelines sentencing range are
reasonable, absent a claim of error in calculating the range.
Certainly, I cannot say that these positions are required by the
language of Booker (nor, however, are they inconsistent with that
language). But they are, I believe, likely to yield a federal
sentencing regime that accords with Congress's policy preferences.
I shall explain briefly, organizing my comments around three
propositions that have received less prominent consideration in the
post-Booker cases than I think is warranted.
1. "Reasonableness" within the meaning of Booker is not
common-law reasonableness; it is "reasonableness in light of
Congress's purposes in enacting the Sentencing Reform Act of 1984."
Booker invalidated a means -- guidelines sentences premised on
mandatory judicial factfinding -– by which Congress sought to
-17-
achieve its goals with respect to federal sentencing. But it in no
way called into question the legitimacy of Congress's purposes in
passing the Act. On the contrary, the primary theme of Justice
Breyer's remedial opinion is that Congress's purposes were and are
valid, and that federal judges should strive to apply the Act (and
the regime created by the Act, almost all of which was left intact)
to further those purposes. See 125 S. Ct. at 757-59 & 767. Thus,
it remains crucial for federal judges to sentence (and to review
sentences) with an eye toward what Congress sought to accomplish.
Doing so requires an appreciation of the Act's history and context.
Prior to the Act, federal district court judges had
almost unbounded discretion to sentence within statutory limits --
a discretion that was largely exempted from appellate review. As
a result, federal defendants with similar criminal backgrounds who
engaged in similar unlawful conduct could receive vastly different
sentences. Congress determined that this lack of uniformity --
described in the Act's legislative history as "astounding,"
Comprehensive Crime Control Act of 1984, S. Rep. No. 98-225, at 41,
reprinted in 1984 U.S.C.C.A.N. at 3224 -- was fair to neither
defendants nor the public. The result was the Act, which had as a
"primary" goal the elimination of unwarranted sentencing
disparities. Id. at 52, reprinted in 1984 U.S.C.C.A.N. at 3235;
see also Mistretta v. United States, 488 U.S. 361, 363-67 (1989)
(discussing the Act and its legislative history).
-18-
The Act sought to accomplish this goal in a number of
ways. It created an expert Sentencing Commission to collect data
and write sentencing guidelines "intended to treat all classes of
offenses committed by all categories of offenders consistently."
S. Rep. No. 98-225, at 51, reprinted in 1984 U.S.C.C.A.N. at 3234.
It identified explicitly the four purposes a sentencing judge
should consider in imposing sentence. See 18 U.S.C. 3553(a)(2)(A)-
(D) (the sentence should reflect the seriousness of the offense,
afford adequate deterrence, protect the public from the defendant,
and provide the defendant with needed vocational training or
medical care). It required the Commission to consider these four
sentencing purposes in fashioning and periodically revising the
guidelines. See S. Rep. 98-225, at 59-60 & 178, reprinted in 1984
U.S.C.C.A.N. at 3242-43 & 3361. It instructed federal judges to
sentence within the guidelines unless an aggravating or mitigating
circumstance existed that was not adequately considered in the
formulation of the guidelines. See id. at 52, reprinted in 1984
U.S.C.C.A.N. at 3235. And it provided the government and defendant
with limited rights to appeal to "assure that the guidelines are
applied properly and [to] provide case law development of the
appropriate reasons for sentencing outside the guidelines." Id. at
151, reprinted in 1984 U.S.C.C.A.N. at 3334.
The guidelines therefore are not only central to the
uniformity that Congress sought to bring about in passing the Act;
-19-
they also are the data-driven and experience-based manifestations
of Congress's considered views on how, in the usual case, to
accomplish the purposes of federal sentencing. Thus, while there
surely is more play in the joints following Booker, it would not
serve the Act's purposes to regard the guidelines as merely one
factor among many that are relevant in arriving at an appropriate
sentence. For the Act's purposes to be served, the guidelines --
which, as matters stand, are the only conceivable centers of
gravity around which some semblance of uniformity in federal
sentencing might be maintained, and which, again, reflect
Congress's considered judgments about the range of appropriate
sentences for federal crimes -- must be accorded substantial
weight. Otherwise, federal sentencing practices are likely to
revert to the free-for-all which marked the pre-guidelines regime.
Whether federal judges believe such a system would be better or
worse than the guidelines-based system is immaterial. What matters
is that such a system would exist only in defiance of the expressed
will of Congress.
2. In terms of Congress's purposes, there is no one
"reasonable" federal sentence in a given criminal case; rather,
there is a range of "reasonable" sentences which always will
include within it the guidelines sentencing range but, post-Booker,
may frequently be broader. That a properly calculated guidelines
sentence always is "reasonable" in terms of Congress's purposes may
-20-
be inferred from the fact that Congress did not give the appellate
courts jurisdiction to review challenges to such a sentence. See
18 U.S.C. § 3742(a), (b); United States v. Ruiz, 536 U.S. 622, 627
(2002) (noting the unanimous view of the appellate courts that §
3742(a) does not permit appellate review of arguments that a
sentence within a properly calculated guidelines sentencing range
was unreasonably high or that the sentencing court abused its
discretion in refusing to depart downward); United States v.
Tucker, 892 F.2d 8, 10 (1st Cir. 1989). The question, then, never
has been whether it is lawful to impose a sentence within the
properly calculated guidelines sentencing range. The answer to
that question always has been "yes." The question, rather, always
has been whether the facts of a particular case also make it lawful
for the sentencing judge to impose a sentence that is outside the
properly calculated guidelines sentencing range. Booker doubtless
makes it easier to answer that question "yes" as well, so long as
the purposes of the Act are not undermined. But Booker did not
fundamentally alter the nature of the questions to be asked.
See 125 S. Ct. at 765-68.
3. Congress created appellate jurisdiction to ensure
that its preferred, more uniform sentencing regime would emerge; it
did not create appellate jurisdiction to allow the government or a
defendant to challenge a district court's discretionary
determination that a case is sufficiently ordinary to warrant a
-21-
sentence within the properly calculated guidelines sentencing
range. Admittedly, in Booker, Justice Scalia reads Justice
Breyer's remedial opinion to authorize appellate challenges to the
reasonableness of sentences imposed within the properly calculated
guidelines sentencing range, and Justice Breyer said nothing in
response to disabuse him of the notion. Compare 125 S. Ct. at 793-
94 (Scalia, J., dissenting in part) with 125 S. Ct. at 766 (Breyer,
J., delivering the opinion of the Court in part). I shall leave
aside the vexing question how, notwithstanding Justice Breyer's
silence, excision of those portions of the Act which made the
guidelines mandatory (which is all that the Booker remedial opinion
purports to accomplish) reasonably might be thought to alter the
settled meaning of 18 U.S.C. § 3742(a) and (b) and to confer
appellate jurisdiction where it did not exist before. See supra at
6; see also United States v. Cooper, ---F.3d---, 2006 WL 330324 at
*7-12 (3d Cir. Feb. 14, 2006) (Aldisert, J., concurring and
dissenting) (elaborating with admirable thoroughness the argument
that Booker should not be read to resolve whether the courts of
appeals have jurisdiction to entertain challenges to sentences
within the properly calculated guidelines sentencing range).
Although I think the government has the better of the
jurisdictional argument, and although I would hold that there still
is no right to appeal discretionary decisions to sentence within
the properly calculated guidelines sentencing range, the issue is
-22-
better left to the Supreme Court. In the interim, it does not much
matter whether we reject such appeals on jurisdictional grounds or
on the merits. Because a sentence within the properly calculated
guidelines sentencing range is per se reasonable when
"reasonableness" is assessed, not "in the air, so to speak" cf.
Palsgraf v. Long Island R. Co., 248 N.Y. 339, 341 (N.Y. 1928)
(Cardozo, C.J.) (citation and internal quotes omitted), but in
terms of Congress's purposes, the result is the same either way.
Given the much-publicized dissatisfaction with the
guidelines in a number of quarters, it is not surprising that the
federal courts have tended to answer the questions left open by
Booker in such a way as to return to federal judges some of the
powers over federal sentencing that Congress appropriated to itself
(or shifted to the executive branch) when it passed the Act. There
may be reason to hope that the post-Booker regime will be viewed
not only as tolerable, but even as an improvement over guidelines
sentencing. But if post-Booker sentencing practices come to be
perceived as resembling too much the non-uniform sentencing that
gave rise to the guidelines, Congress may well respond with
legislation that circumscribes judicial power and discretion even
more tightly. And there is for certain good reason to doubt that
criminal justice interests would be better served by such a system.
Dissent follows.
-23-
LIPEZ, Circuit Judge, dissenting. I agree with some of
the majority's description of the role that the advisory guidelines
should play in the determination of post-Booker sentences, and its
rejection of the reasoning of Judge Howard's concurring opinion.
The guidelines remain an important consideration in sentencing.
The guidelines should not be presumptively controlling, and a
guidelines sentence should not be deemed per se reasonable. The
guidelines are generalizations that can be unreasonable in
particular cases.
But the district court's approach to the guidelines in
this case was inconsistent with these principles. I do not say
this to be critical of the district court. It was operating in an
uncertain environment. Its discussion of the guidelines was
careful and thoughtful. However, this statement of the district
court, quoted by the majority, is the problem:
I am certainly treating the guidelines as advisory, not
mandatory, but I feel I need to start someplace and
that's where I am going to start. I do intend to give
them substantial weight, but they don't have controlling
weight; and if there are clearly identified and
persuasive reasons why I should not impose a guidelines
sentence, I will consider those and impose a sentence
accordingly.
The majority characterizes this paragraph as "adroit" and a "useful
compass." I disagree. There is a significant difference between
treating the guidelines as important and giving them substantial
weight. There is scant difference between treating a guidelines
sentence as presumptively controlling and stating that the court
-24-
will depart from that sentence only for "clearly identified and
persuasive reasons."5 Here, the judge gave the guidelines a weight
and a centrality that uncomfortably approximate the mandatory
guidelines system that the Supreme Court found unconstitutional in
Booker. To steer a sensible course between the Supreme Court's
rejection on constitutional grounds of mandatory guidelines and
Congress's continuing reliance on the guidelines to achieve
uniformity in sentencing, I think that a different approach to
sentencing post-Booker is required.
I.
There is useful guidance for this approach in the
Sentencing Reform Act ("SRA") itself, and particularly 18 U.S.C. §
3553, which describes the procedures that courts must follow in
sentencing. Although that statute now identifies the guidelines
sentencing range as only one of the sentencing factors to
consider,6 I believe that the district court should first calculate
5
The district court's decision to give substantial weight to
the guidelines and its requirement that a party demonstrate
"clearly identified and persuasive reasons" before the court will
consider and impose a non-guidelines sentence tracks the language
used by the district court in United States v. Wilson, 350 F. Supp.
2d 910, 912 (D. Utah 2005). In that case, which was decided just
one day after Booker, the district court determined that "in all
future sentencings, the court will give heavy weight to the
Guidelines in determining an appropriate sentence. In the exercise
of its discretion, the court will only depart from those Guidelines
in unusual cases for clearly identified and persuasive reasons."
Id. For the reasons discussed below, I reject this approach.
6
Section 3553(b)(1) of the SRA made the guidelines mandatory,
stating that a sentencing court "shall impose a sentence of the
-25-
the guidelines sentence range ("GSR"), including any departures, as
it did pre-Booker.7 See 18 U.S.C. § 3553(a)(4)(A) ("The court, in
determining the particular sentence to be imposed, shall consider
. . . the kinds of sentence and the sentencing range established
for . . . the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines .
. . ."). This first step is sensible. The guidelines are the only
sentencing factor that yield a measure of time. That fact alone
establishes their continuing importance. Hence, I find meaningless
the debate over whether the guidelines post-Booker are more
important than the other sentencing factors in section 3553(a) or
whether they are simply as important and no more. That comparison
involves incommensurable factors because the guidelines suggest a
temporal outcome whose appropriateness must then be assessed in
kind, and within the range, referred to in [the guidelines]"
(except in circumstances justifying a departure). Finding this
provision "incompatible with [its] constitutional holding," the
Supreme Court severed and excised it. United States v. Booker, 543
U.S. 220, 245 (2000).
7
In this case, the district court (after addressing the
defendant's legal and factual objections to the Presentence Report)
properly began its sentencing determination by calculating the
guidelines sentencing range. This approach was consistent with
that prescribed by the majority of circuits that have addressed
this issue. See, e.g., United States v. Kristl, ---F.3d---, 2006
WL 367848, at *4 (10th Cir. Feb. 17, 2006); United States v.
McBride, 434 F.3d 470, 476 (6th Cir. 2006); United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005); United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005); United States v. Dean, 414 F.3d
725, 727 (7th Cir. 2005); United States v. Mashek, 406 F.3d 1012,
1017 n.7 (8th Cir. 2005); United States v. Shelton, 400 F.3d 1325,
1332 n.9 (11th Cir. 2005).
-26-
light of the case-specific factors identified in section 3553(a).
Indeed, with their focus on the bottom line, the prosecution and
defense counsel will inevitably address their arguments to the
appropriateness or inappropriateness of a guidelines sentence.
The statute then tells the district court how it must
evaluate these arguments. The court should determine whether a
sentence within the GSR is "sufficient, but not greater than
necessary,8 to comply with the purposes set forth in [section
3553(a)(2)],"9 based on the "nature and circumstances of the
8
The so-called "parsimony" provision, which requires that
sentences be only as long as necessary to serve the purposes listed
in section 3553(a)(2), has received scant attention from courts.
Commentators note that this provision, which was originally part of
the House sentencing reform bill and was later added to the Senate
resolution and adopted in committee, "is not just another 'factor'
to be considered along with others set forth in Section 3553(a) .
. . – it sets an independent limit on the sentence a court may
impose." David L. Mccolgin & Brett G. Sweitzer, Grid & Bear It, 29
Champion 50, 50 (2005); see also United States v. Foreman, ---F.3d-
--, 2006 WL 287365, at *6 n.1 (6th Cir. Feb. 8, 2006) ("[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).") (quoting 18 U.S.C. § 3553(a)); Richard S. Frase,
Punishment Purposes, 58 Stan. L. Rev. 67, 83 (2005) (stating that
"the structure of section 3553(a)," which lists the parsimony
principle first, suggests that this principle "set[s] overall
limits on the crime-control and other purposes which follow").
9
These purposes are:
(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
-27-
offense and the history and characteristics of the defendant," "any
pertinent policy statement . . . issued by the Sentencing
Commission," "the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of
similar conduct," and "the need to provide restitution to any
victims of the offense." 18 U.S.C. § 3553(a). Importantly, there
is no assumption here that a guidelines sentence complies with the
purposes of the sentencing statute. Instead, that compliance must
be tested by consideration of the multiple factors set forth in the
sentencing statute, with particular attention to the factors
identified by the parties in their arguments.
If, after conducting this multi-factor analysis, the
court concludes that a sentence within the GSR does not comply with
the purposes set forth in section 3553(a)(2), the court should
impose a non-guidelines sentence. See Booker, 543 U.S. at 245-46
(stating that the SRA, as amended by Booker, "requires a sentencing
court to consider Guidelines ranges, see 18 U.S.C.A. § 3553(a)(4)
(Supp. 2004), but it permits the court to tailor the sentence in
light of other statutory concerns as well, see § 3553(a)(Supp.
2004)"). To be sure, because a court begins its analysis with a
calculation of the guidelines sentence, a court that chooses a non-
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner
18 U.S.C. § 3553(a)(2).
-28-
guidelines sentence will have the burden of explaining its choice.
But this explanatory burden is not a function of the special weight
or status of the guidelines. It is a function of the sentencing
statute itself, which requires that any sentence that the court
imposes, within or without the guidelines, comply with the purposes
set forth in the statute.
Before Booker, the mandatory guidelines overwhelmed the
other sentencing factors set forth in section 3553. There was
scant need to look beyond the guidelines system (including its
departure standards) to justify a sentence. That is no longer
true. All of the sentencing factors in section 3553 are now fully
in play. As a matter of statutory construction, there is nothing
in the language of section 3553(a) that justifies attributing to
the guidelines "substantial weight" in the sentencing decision.
There are some who contend that the advisory guidelines
largely account for all of the relevant sentencing factors. See,
e.g., Shelton, 400 F.3d at 1332 n.9 ("The factors the Sentencing
Commission was required to use in developing the Guidelines are a
virtual mirror image of the factors sentencing courts are required
to consider under Booker and § 3553(a)."); see also Prepared
Testimony of Judge Ricardo H. Hinojosa, Chair, United States
Sentencing Commission Before the Subcommittee on Crime, Terrorism,
and Homeland Security, Committee on the Judiciary, United States
House of Representatives (Feb. 10, 2005), available at
-29-
http://www.ussc.gov/Blakely/bookertestimony.pdf (last visited Feb.
25, 2006) (same). That being so, the argument goes, there must
still be primary reliance on the guidelines in sentencing.
This argument is too facile. As the majority points
out, the guidelines are inescapably generalizations. They say
little about "the history and characteristics of the defendant."
Indeed, the guidelines prohibit consideration of certain
individualized factors, namely, lack of guidance as a youth and
similar circumstances; drug or alcohol dependence or abuse and
gambling addiction; personal financial difficulties and economic
pressures upon a trade or business; post-sentencing rehabilitative
efforts; diminished capacity where the offense involved violence or
serious threat of violence, or where diminished capacity was caused
by voluntary use of drugs or other intoxicants; and aberrant
behavior involving, among other things, a serious drug trafficking
offense. U.S.S.G. §§ 5K2.0(d)(1), 5K2.13, 5K2.20(c). The
guidelines also discourage - except in "exceptional cases" -
consideration of other individualized factors, including: age, §
5H1.1; education and vocational skills, § 5H1.2; mental and
emotional conditions, § 5H1.3; physical condition, § 5H1.4;
employment record, § 5H1.5; family ties and responsibilities, §
5H1.6; and civil and military contributions, §5H1.11. These
prohibited and discouraged factors are in tension with the
holistic, personalized view of the defendant required by section
-30-
3553(a)'s other factors. See, e.g., Stephen G. Kalar et al., A
Booker Advisory: Into the Breyer Patch, 29 Champion 8, 15 (2005)
(stating that "prohibited or discouraged departures" are "tailor-
made for the broader equitable analysis under § 3553(a)"); see also
Foreman, 2006 WL 287365, at *5 ("A sentence within the Guidelines
carries with it no implication that the district court considered
the 3553(a) factors if it is not clear from the record, because, of
course, under the Guidelines as mandatory, a district court was not
required to consider the section 3553(a) factors.").
The very mention of these prohibited and discouraged
factors dismays some critics of sentencing who see in them the
potential for unseemly consideration of a defendant's plight and a
return to the sentencing abuses and disparities that inspired the
guidelines. That potential is surely there. We must be concerned
about it. But it is also true that the old system operated in the
complete absence of guidelines. We now have an advisory guidelines
system whose consequences are unforeseeable. Despite the dire
predictions of some, there is also the possibility that this new
system will permit the individualized sentencing absent under the
mandatory guidelines system without repeating the disparities so
troubling to Congress. As the remedial majority in Booker states,
the "features of the remaining system, while not the system
Congress enacted, nonetheless continue to move sentencing in
Congress's preferred direction, helping to avoid excessive
-31-
sentencing disparities while maintaining flexibility sufficient to
individualize sentences where necessary." 543 U.S. at 264-65.
Section 3553(a)'s other factors are not necessarily antithetical to
Congress's "preferred direction," and may be part and parcel of it
– "maintaining flexibility sufficient to individualize sentences
where necessary." Id.
II.
I have focused on the procedural role of the advisory
guidelines post-Booker because I believe that focus captures the
importance of the guidelines in the most balanced way. I also
agree with the Second Circuit that this focus on procedure is "more
consonant with the day-to-day role of district judges in imposing
sentences and the episodic role of appellate judges in reviewing
sentences . . . to permit the concept of 'consideration' [as
required by Booker] in the context of the applicable guidelines
range to evolve as district judges faithfully perform their
statutory duties." United States v. Crosby, 397 F.3d 103, 113 (2nd
Cir. 2005).
The key is the faithful performance of the statutory
duties set forth in section 3553. That faithful performance will
require more than the formulaic invocation of the words of the
statute by sentencing judges. There will have to be explanations
that are responsive to the sentencing issues raised by the parties
and that relate the court's decisions on those issues to the
-32-
multiple purposes and factors of section 3553. See United States
v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005) ("[W]e have to
satisfy ourselves, before we can conclude that the judge did not
abuse his discretion, that he exercised his discretion, that is,
that he considered the factors relevant to that exercise."). The
burden of explanation for the district courts is inescapably
greater than it was before because of the more open-ended nature of
sentencing post-Booker.10 Although the guidelines were legally
complex, and the fact-finding required by the guidelines could be
burdensome at times, the bottom-line judgments were largely
mechanical once the offense level and the criminal history numbers
were calculated. All of that guidelines work is still there
because the guidelines are still there. But now the bottom-line
judgments are not mechanical. They must now be more nuanced
judgments that reflect both the guidelines analysis and the larger
context of the sentencing factors and purposes identified in
section 3553.
Given this daunting task, there is value in procedural
regularity that begins with the guidelines analysis and then, with
10
As the Federal Public Defenders point out in their amicus
curiae brief, we required, even before Booker, that a court's
explanation of its sentence "sufficiently show[] a thoughtful
exercise of the court's sentencing responsibility and a degree of
care and individualized attention appropriate to the solemnity of
the sentencing task." United States v. Vazquez-Molina, 389 F.3d
54, 59 (1st Cir. 2004), cert. granted, judgment vacated, and case
remanded on other grounds, 125 S. Ct. 1713 (2005).
-33-
particular attention to the sentencing issues raised by the
parties, moves on to the additional analysis required by section
3553. While the district court's reasoning can, as the majority
states, "often be inferred by comparing what was argued by the
parties or contained in the presentence report with what the judge
did," our ability to infer from the record should be no substitute
for the trial court's obligation to explain. That obligation is
particularly important in these early days post-Booker, when the
district courts must view and apply the guidelines in a new way.
The guidelines are no longer self-justifying. They are not the
safe harbor they once were. However, if district courts assume
that the guidelines sentence complies with the sentencing statute,
and focus only on the compliance of the non-guidelines sentence
urged by the defendant, the district courts will effectively give
the guidelines a controlling weight and a presumptive validity that
-34-
is difficult to defend under the constitutional ruling in Booker.11
That is precisely what happened in this case.
III.
The district court began its sentencing analysis with a
calculation of the guidelines sentencing range and the rejection of
any guidelines departures. As I have indicated, I think that
guidelines calculation is a sensible beginning point. But the
district court then made a mistake because of its view that a
guidelines sentence should be accorded substantial weight and that
any deviation from the guidelines must be based on clear and
11
Many commentators argue that by giving the guidelines
controlling weight, and abdicating the responsibility to take
account of the other section 3553(a) factors, courts "effectively
mak[e] the guidelines as binding as they were before Booker,"
thereby violating Booker's constitutional command. Mccolgin &
Sweitzer, supra, at 53; see also Frank O. Bowman, III, Beyond Band-
Aids: A Proposal for Reconfiguring Federal Sentencing After Booker,
2005 U. Chi. Legal F. 149, 183 (2005). Justice Stevens made a
similar point in his dissent in Booker, stating that the
"sentencing range is now nothing more than a suggestion that may or
may not be persuasive to a judge when weighed against the numerous
other considerations listed in [section 3553(a)]." 243 U.S. at 300
(Stevens, J., dissenting in part). Justice Scalia wrote to the
same effect, stating that "logic compels the conclusion that the
sentencing judge, after considering the recited factors (including
the Guidelines), has full discretion, as full as what he possessed
before the Act was passed, to sentence anywhere within the
statutory range. If the majority thought otherwise . . . its
opinion would surely say so." Id. at 305 (Scalia, J., dissenting
in part). To be sure, these are dissents to the remedial decision
in Booker, which does not elaborate on its statement that the
guidelines must be "consider[ed]" post-Booker. But given the close
divisions on the Court about the post-Booker role of the
guidelines, and given the new composition of the Court, it would be
foolhardy to ignore the constitutional dangers of adopting an
approach to the guidelines post-Booker that approximates, in a new
guise, the mandatory guidelines.
-35-
persuasive reasons. Having completed the guidelines analysis, the
court said to defense counsel: "All right. Let's turn then to a
– whether a nonguideline sentence will be appropriate under –
taking into account the factors set forth at [section 3553(a)]."
This question assumed that a sentence within the calculated
guidelines range complied with the multi-purpose, multi-factor
requirements of section 3553(a). The court stated that it would
only subject any non-guidelines sentence urged by defense counsel
to the analysis required by the sentencing statute.
Although defense counsel, wittingly or unwittingly, tried
to shift the focus, arguing at length that a guidelines sentence
would not comply with the requirements of section 3553(a), and a
sentence below the guidelines would, the district court did not
shift its focus. After hearing the government's predictable
argument for a guidelines sentence – "the guidelines in this
particular case take into account all of the considerations and all
of the goals set forth in section 3553(a)" – the district court
stated its conclusion:
-36-
So, for those reasons,12 I'm not inclined to impose a
nonguideline sentence in this case. I have the authority
to do so, and I have considered the various factors set
forth in [section 3553(a)], and have listened to the
eloquent argument of [defense counsel], but I think under
the circumstances I'm going to impose a sentence that is
within the sentencing guidelines even though they are
part advisory and not mandatory.
After announcing its specific sentence, which included
imprisonment for a term of 46 months (a sentence at the bottom of
the guidelines range), the court stated that "a higher sentence is
not necessary to achieve the various goals of sentencing." It then
added: "For the reasons previously indicated, I see no basis for
a departure from the guidelines within the guidelines framework and
no clearly identified and persuasive reasons to impose a non-
guidelines sentence."
In the end, the court applied the approach to the
guidelines that it announced at the beginning of the sentencing
hearing. Given the substantial weight that it gave to the
appropriateness of a guidelines sentence, it required clearly
identified and persuasive reasons to impose a non-guidelines
sentence. Finding none, and having therefore concluded that a non-
12
Before stating its conclusion, the district court carefully
explained why defense counsel's arguments about the country's
policy toward illegal immigration, the disparities generated by
fast-track sentencing, the poverty and difficult family
circumstances of the defendant, and the eventual deportation of the
defendant, did not justify a non-guidelines sentence. This careful
explanation was characteristic of the district court's work
throughout the proceedings. My objection to the district court's
work relates only to its erroneous approach to the guidelines.
-37-
guidelines sentence did not comply with the purposes and factors of
the sentencing statute, it imposed a guidelines sentence whose
compliance with the sentencing statute was assumed.
Does it matter that the district court's negative finding
that a non-guidelines sentence did not comply with the sentencing
statute might imply a positive finding that a guidelines sentence
did comply with the statute? Does it matter that the specific
sentence that the district court imposed here might seem
reasonable?13 In my view, it does not.
Word choices matter because they reflect mental
processes, and mental processes matter because they organize
information for the decision-maker. Here, in explicit terms, the
district court organized all of the information it received from
the parties around the wrong proposition – could a non-guidelines
sentence be justified? The court never questioned the assumption
13
I must also acknowledge my uneasiness with the majority's
suggestion that "a plausible outcome" translates into a reasonable
sentence. I would prefer that we not prematurely offer glosses on
the content of "reasonableness." We should give content to the
concept of reasonableness through our review of specific sentences,
especially given the increased importance of appellate review post-
Booker. See Foreman, 2006 WL 287365, at *5 ("Under the mandatory
Guideline system, appellate review was not integral to assuring
uniformity. Now, with the advisory Guidelines and more sentencing
variables, appellate review is all the more important in assuring
uniformity and reducing sentencing disparities across the board.").
I am concerned that the majority's language needlessly dilutes an
already deferential standard of review. See United States v. Pho,
433 F.3d 53, 61 (1st Cir. 2006) (stating that the abuse of
discretion standard, and by extension, the reasonableness standard,
"contemplates substantial deference to the judgment calls of a nisi
prius court").
-38-
that the guidelines sentence complied with the statute. In the
future, when district courts have adjusted to the new way of
thinking about the guidelines required by Booker, there may be some
justification for greater tolerance of word choices and implied
findings. But not yet.
Moreover, there is not one reasonable sentence.
Reasonableness covers a wide span of possibilities, including
possibilities outside the guidelines. The district court gave
insufficient consideration to those possibilities because of its
assumption that a guidelines sentence complied with the sentencing
statute. That assumption was a legal error, and "errors of law
render a sentence per se unreasonable." Pho, 433 F.3d at 60-61.
Resentencing is therefore required. I respectfully dissent.
-39-
United States v. Jimenez-Beltre
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