United States Court of Appeals
For the First Circuit
No. 06-1983
UNITED STATES OF AMERICA,
Appellant,
v.
ROBERT MARTIN,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Schwarzer,* Senior District Judge.
Dina Michael Chaitowitz, Assistant United States
Attorney, with whom Michael J. Sullivan, United States Attorney,
was on brief, for appellant.
Roger A. Cox, with whom Cox & Cox was on brief, for
appellee.
March 21, 2008
_______________
*Of the Northern District of California, sitting by designation.
SELYA, Senior Circuit Judge. In Gall v. United States,
128 S. Ct. 586 (2007), the Supreme Court shed considerable light on
the scope and extent of a district court's discretion under the
now-advisory federal sentencing guidelines. See id. at 598-602.
This appeal represents our first full-fledged application of the
teachings of Gall. At the same time, it also affords us an
opportunity to discuss a relatively new phenomenon: the practice
indulged in by some district courts, of filing post-judgment, post-
appeal sentencing memoranda.
The circumstances are as follows. Defendant-appellee
Robert Martin pleaded guilty to a charge of conspiracy to
distribute more than 35 but less than 50 grams of cocaine base
(crack cocaine) in violation of 21 U.S.C. § 846. In the
presentence investigation report (PSI Report), the probation office
set his base offense level under the federal sentencing guidelines
at 30, and adjusted it downward to 27 to take account of his
acceptance of responsibility. See USSG §3E1.1. The defendant had
eight prior convictions, yielding a criminal history score of 14;
that placed him in criminal history category VI. His guideline
sentencing range (GSR) was, therefore, 130-162 months.
In this case, that calculation was trumped by the
defendant's career offender status. See USSG §4B1.1; see also
United States v. Jimenez, 512 F.3d 1, 8 (1st Cir. 2007) (discussing
potential trumping effect of career offender calculation). That
-2-
designation, based on six of his prior convictions, yielded an
enhanced GSR of 262-327 months.
At the disposition hearing, the defendant moved for a
downward departure or, premised on 18 U.S.C. § 3553(a),1 a sentence
beneath the GSR. Specifically, he asked the court to sentence him
to the ten-year statutory minimum. See 21 U.S.C. § 841(b)(1)(B).
In support of so steep a variance, the defendant argued
that his criminal history score overrepresented the seriousness of
1
The cited statute directs a sentencing court to consider:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed–
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes of
the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical care,
or other correctional treatment in the most
effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for–
(A) the applicable category of offense committed by
the applicable category of defendant as set forth
in the guidelines . . .
(5) any pertinent policy statement [in the guidelines] . . .
(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).
-3-
his previous convictions because several of them were remote in
time, one was for a misdemeanor, and others involved mitigating
circumstances. He also argued that a variance was warranted
because of his difficult childhood; the supportive role of his
wife, children, and stepchildren; his newfound religious faith; and
his potential for rehabilitation. Finally, he pointed out that a
number of his codefendants had received variant, below-the-range
sentences.
The government responded that the defendant's family
circumstances were commonplace; that his criminal record was a
matter of great concern; and that his persistent recidivism
reflected scant hope for rehabilitation. Given these realities,
the government urged the lower court to impose a sentence of 262
months.
The court adopted the guidelines calculations limned in
the PSI Report with one exception: having found that the
defendant's criminal history score overstated the seriousness of
his felonious past, the court rolled back his criminal history
category from VI to V. This downward departure yielded a new
career offender sentencing range of 235-293 months. The court then
imposed a 144-month incarcerative sentence (a full 91 months below
the nadir of the recalculated sentencing range). The court
explained:
I can't justify going down to the
minimum-mandatory sentence of ten years but
I’m going to impose a sentence of 144 months
-4-
which is a 12-year sentence. It’s a
tremendously tough sentence. It’s a
tremendously tough sentence for Mr. Martin to
have to serve, and I think that the sentence
is fully responsive to all the criteria set
forth at 18 U.S. Section 3553. It brings home
the seriousness of the offense and properly
addresses it.
It acts as a deterrent to others who
might be tempted to step on the path that Mr.
Martin walked down. It responds to the
specific circumstances of this case, and I
believe that the 144-month sentence does
recognize the positive things about Mr.
Martin, and I have in mind particularly the
close relationship he has with his family who
are here today and how important that
relationship is. It really makes a difference
to me to have people here showing their
support for him.
I also believe that Mr. Martin has
demonstrated an unusually strong commitment to
a law-abiding life and I do believe that when
he is released from prison and after he [has]
served his very difficult sentence, he will
stay on the right path and be the sort of
person that he now wants to be.
I also believe that a twelve-year
sentence will bring his sentence in line with
the sentences that I’m imposing on people who
are in equivalent positions to Mr. Martin and
I have that in mind as another reason for
going outside the guidelines here.
So in summary: The close family
relationships, the support of the family, Mr.
Martin’s own qualities which I think he
expressed very well in his statement, and
thirdly, to bring the sentence in line with
other defendants I’m sentencing in this same
very, very destructive drug conspiracy I will
impose that sentence.
-5-
In its near-contemporaneous written statement of reasons in support
of the sentence, see 18 U.S.C. § 3553(c)(2), the court referenced
18 U.S.C. § 3553(a) and stated that it was imposing a below-range
sentence "due to the defendant's close family ties and support; the
defendant's personal qualities, and to be in line with the
sentences being imposed on codefendants in this matter."
The government filed a timely notice of appeal. While
that appeal was pending (and almost one year after it pronounced
sentence and entered judgment), the district court issued a
supplemental memorandum (the Memorandum) that it described as
"intended to distill . . . more concisely" the reasoning that
underlay the sentence. The Memorandum vouchsafed that the sentence
had been based principally on four elements. First, the defendant
had "unusually strong" support from his family. Second, his
"expressions of remorse were unusually sincere and reliable."
Third, there was "an unusually low likelihood of recidivism."
Fourth, the defendant "was responsible for a significant but not
overwhelming amount of drugs," and the sentence actually imposed
was comparable to those imposed on other (similarly situated)
coconspirators.
That was the state of the record when this appeal was
argued on September 5, 2007. We withheld decision in anticipation
that the Supreme Court shortly would revisit the sentencing
guidelines and speak authoritatively to the tri-cornered
-6-
relationship among them, the district court's discretion (informed
by the section 3553(a) factors), and the sentence actually imposed.
That expectation was rewarded in Gall, a decision that warrants
some elaboration.
After pleading guilty to a drug-trafficking charge, Gall
faced a GSR of 30-37 months. 128 S. Ct. at 592-93. The district
court, taking account of several section 3553(a) factors —
including age, voluntary withdrawal from the charged conspiracy,
familial support, and apparent pre-indictment rehabilitation —
eschewed hard time and imposed a probationary sentence. Id. at
593. The court of appeals vacated the judgment, terming the non-
incarcerative sentence "unreasonable" and stressing that the
sentence comprised a "100% downward variance" from the GSR. Id. at
594 (quoting United States v. Gall, 446 F.3d 884, 889 (8th Cir.
2006)).
The Supreme Court reinstated the sentence. See id. at
598-602. In so doing, the Justices emphasized the broad sweep of
a sentencing court's discretion in the wake of the decision in
United States v. Booker, 543 U.S. 220, 260-62 (2005), which
rendered the federal sentencing guidelines advisory. See Gall, 128
S. Ct. at 594-98.
The Gall Court was careful not to throw out the baby with
the bath water. The Court acknowledged that the guidelines deserve
some weight in the sentencing calculus, as they are "the product of
-7-
careful study based on extensive empirical evidence derived from
the review of thousands of individual sentencing decisions." Id.
at 594. It made clear, though, that courts of appeals must grant
district courts wide latitude in making individualized sentencing
determinations, thus guarding against the institutionalization of
an impermissible presumption that outside-the-range sentences are
unreasonable. Id. at 595.
To help navigate the strait between guidance and
discretion, the Gall Court laid out a sequence of steps for
sentencing courts to follow. A sentencing determination should
begin with the calculation of the particular defendant's GSR. As
a final step in arriving at a defendant's GSR, the district court
must assess the appropriateness vel non of any departures.2 See
United States v. Dixon, 449 F.3d 194, 204 (1st Cir. 2006).
Properly calibrated, the GSR should serve as the
sentencing court's "starting point" or "initial benchmark." Gall,
128 S. Ct. at 596. Nevertheless, the guidelines are only advisory,
see Booker, 543 U.S. at 262, and the sentencing court may not
mechanically assume that the GSR frames the boundaries of a
reasonable sentence in every case. See Gall, 128 S. Ct. at 596-97.
2
Departures are distinct from what are interchangeably called
variances or deviations, which are superimposed upon the ultimate
guidelines calculation. See United States v. Vampire Nation, 451
F.3d 189, 195 & n.2 (3d Cir. 2006).
-8-
The sentencing court's next steps should include hearing
argument from the parties as to the proper sentence in the
particular case, weighing the applicability of the sundry factors
delineated in 18 U.S.C. § 3553(a), reaching an ultimate sentencing
determination, and explicating that decision on the record. See
Gall, 128 S. Ct. at 596-97. This progressive sequence was
adumbrated in our post-Booker, pre-Gall jurisprudence. See, e.g.,
Dixon, 449 F.3d at 203-05; United States v. Jiménez-Beltre, 440
F.3d 514, 518-19 (1st Cir. 2006) (en banc).
This sequencing necessitates a case-by-case approach, the
hallmark of which is flexibility. In the last analysis, a
sentencing court should not consider itself constrained by the
guidelines to the extent that there are sound, case-specific
reasons for deviating from them. Nor should a sentencing court
operate in the belief that substantial variances from the
guidelines are always beyond the pale. Rather, the court should
"consider every convicted person as an individual and every case as
a unique study in the human failings that sometimes mitigate,
sometimes magnify, the crime and the punishment to ensue." Gall,
128 S. Ct. at 598.
Of course, the fact that a sentencing court possesses the
raw power to deviate from the guidelines does not mean that it can
(or should) do so casually. The court's reasons for deviation
should typically be rooted either in the nature and circumstances
-9-
of the offense or the characteristics of the offender; must add up
to a plausible rationale; and must justify a variance of the
magnitude in question. See, e.g., United States v. Scherrer, 444
F.3d 91, 93 (1st Cir. 2006) (en banc); Jiménez-Beltre, 440 F.3d at
519. Moreover, a certain "sliding scale" effect lurks in the
penumbra of modern federal sentencing law; the guidelines are the
starting point for the fashioning of an individualized sentence, so
a major deviation from them must "be supported by a more
significant justification than a minor one." Gall, 128 S. Ct. at
597.
We hasten to add, however, that notwithstanding this need
for an increased degree of justification commensurate with an
increased degree of variance, there is no stringent mathematical
formula that cabins the exercise of the sentencing court's
discretion. See id. at 595. Indeed, after Gall the sentencing
inquiry — once the court has duly calculated the GSR — ideally is
broad, open-ended, and significantly discretionary. United States
v. Vega-Santiago, ___ F.3d ___, ___ (1st Cir. 2008) (en banc) [No.
06-1558, slip op. at 7]. At that point, sentencing becomes a
judgment call, and a variant sentence may be constructed "based on
a complex of factors whose interplay and precise weight cannot even
be precisely described." Id. at ___ [slip op. at 5].
Gall also speaks to the principles that inform appellate
review of sentencing determinations. A corollary of the broad
-10-
discretion that Gall reposes in the district courts is the
respectful deference that appellate courts must accord district
courts' fact-intensive sentencing decisions. Thus, the court of
appeals must review the sentence actually imposed "under a
deferential abuse-of-discretion standard." Gall, 128 S. Ct. at
591. In that endeavor, it must "first ensure that the district
court committed no significant procedural error, such as 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–including an explanation for any deviation from the
Guidelines range." Id. at 597.
Once the appellate court has satisfied itself that the
sentence is procedurally sound, it must proceed, under the same
abuse of discretion rubric, to review the substantive
reasonableness of the sentence, taking into account the totality of
the circumstances. Id. When the sentence is outside the GSR, the
appellate court is obliged to consider the extent of the variance,
but even in that posture it "must give due deference to the
district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance." Id. That is because the
sentencing court possesses a number of institutional advantages,
including a superior coign of vantage, greater familiarity with the
-11-
individual case, the opportunity to see and hear the principals and
the testimony at first hand, and the cumulative experience garnered
through the sheer number of district court sentencing proceedings
that take place day by day. Id. at 597-98.
With this preface, we return to the case at hand. The
government makes no claim that the district court committed any
procedural error either prior to or in the course of imposing
sentence. Accordingly, our review is limited to the substantive
reasonableness of the 144-month sentence actually imposed.3 In
probing that point, we remain mindful of two abecedarian truths.
First, because we cannot desultorily substitute our
judgment for that of the sentencing court, it is not a basis for
reversal that we, if sitting as a court of first instance, would
have sentenced the defendant differently. Second, reasonableness
is a protean concept, not an absolute. We think it follows that
there is not a single reasonable sentence but, rather, a range of
reasonable sentences. See Dixon, 449 F.3d at 204. Consequently,
reversal will result if — and only if — the sentencing court's
ultimate determination falls outside the expansive boundaries of
that universe.
3
In challenging the substantive reasonableness of the sentence
actually imposed, the government abjures any targeted objection to
the specificity of the court's contemporaneous explanation for that
sentence. Any such objection is, therefore, waived. See United
States v. Gilman, 478 F.3d 440, 446-48 (1st Cir. 2007).
-12-
In considering objections to a sentence's substantive
reasonableness, we examine the district court's contemporaneous
oral explanation of the sentence, 18 U.S.C. § 3553(c), its near-
contemporaneous written statement of reasons, id. § 3553(c)(2), and
what fairly can be gleaned by comparing what was argued by the
parties or proffered in the PSI Report with what the sentencing
court ultimately did, see Jiménez-Beltre, 440 F.3d at 519.4 At the
disposition hearing in this case, the district court emphasized
that it grounded the sentence on three considerations: the support
that the defendant stood to receive from his family, personal
qualities indicating his potential for rehabilitation, and a
perceived need to avoid disparity arising out of the length of the
defendant's sentence relative to coconspirators' sentences. The
government asserts that these proffered reasons, whether taken
singly or in combination, cannot justify the district court's 91-
month deviation.
We begin our assessment of these reasons with the
defendant's family circumstances. The record is replete with
letters from family and friends attesting to the defendant's
virtues as a father, and the district court had the opportunity to
see the devotion of the defendant's family members in person. The
government seemingly grants that this ground, like every other
4
For reasons to which we shall return, we do not consider the
district court's belated post-judgment Memorandum.
-13-
ground on which the district court relied, is supported by the
record. But in an effort to blunt the force of this showing, the
government points out that the policy statements incorporated
within the guidelines generally discourage the consideration of
family circumstances in sentencing decisions. See, e.g., USSG
§5H1.6.
Policy statements issued by the Sentencing Commission
are, of course, pertinent to sentencing determinations even under
the now-advisory guidelines. See 18 U.S.C. § 3553(a)(5); see also
United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006).
Nevertheless, such policy statements normally are not decisive as
to what may constitute a permissible ground for a variant sentence
in a given case. See United States v. Simmons, 470 F.3d 1115, 1130
(5th Cir. 2006); United States v. Rivera, 448 F.3d 82, 86 (1st Cir.
2006); United States v. Smith, 445 F.3d 1, 5 (1st Cir. 2006); see
also United States v. Kimbrough, 128 S. Ct. 558, 570 (2007) ("[A]s
a general matter, courts may vary [from Guidelines ranges] based
solely on policy considerations, including disagreements with the
Guidelines.") (internal quotation marks omitted). A district court
therefore may take idiosyncratic family circumstances into account,
at least to some extent, in fashioning a variant sentence. See,
e.g., United States v. Grossman, ___ F.3d ___, ___ (6th Cir. 2008)
[2008 WL 160612, at *4]; United States v. Lehmann, ___ F.3d ___,
-14-
___ (8th Cir. 2008) [2008 WL 150667, at *3]; United States v.
Pauley, 511 F.3d 468, 474 (4th Cir. 2007).
The potential for rehabilitation also may comprise grist
for the sentencing court's mill. To be sure, there are valid
reasons for regarding professions of post-offense rehabilitation
skeptically. See United States v. Bogdan, 284 F.3d 324, 330 (1st
Cir. 2002) ("It is not uncommon for defendants to discover the
virtues of introspection and remorse when facing the threat of
punishment."). But separating wheat from chaff is primarily a task
for the district court, and a founded prospect of meaningful
rehabilitation remains a permissible basis for a variant sentence
under the now-advisory guidelines. See 18 U.S.C. § 3553(a)(2)(C)
("The court . . . shall consider the need for the sentence imposed
to protect the public from further crimes of the defendant."); see
also Smith, 445 F.3d at 4-5.
Should one credit the district court's observations — and
the standard of review inclines us in that direction — the
defendant here made a particularly striking impression: two years
of post-arrest incarceration prior to sentencing let him see the
error of his former ways, renounce them, and embrace a renewed
commitment to religion and family. When this metamorphosis is
combined with the reciprocal commitment exhibited by his family,
the likelihood of meaningful rehabilitation rises to a level
meriting some weight in the section 3553(a) calculus. See, e.g.,
-15-
United States v. Phinazee, ___ F.3d ___, ___ (6th Cir. 2008) [2008
WL 320774, at *5]; Grossman, ___ F.3d at ___ [2008 WL 160612, at
*4-5]; United States v. Gay, 509 F.3d 1334, 1337-38 (10th Cir.
2007); see also Gall, 128 S. Ct. at 601 (noting that, on the
particular facts of the case, the district court was justified in
"believing [defendant's] turnaround was genuine, as distinct from
a transparent attempt to build a mitigation case"); cf. United
States v. Sklar, 920 F.2d 107, 116-17 (1st Cir. 1990) (explaining
that, "in an appropriate case, a defendant's presentence
rehabilitative efforts and progress . . . can so far exceed
ordinary expectations" as to provide a basis for a downward
departure). While there are obvious limits on the sentencing
court's discretion in this area, see, e.g., United States v. Milo,
506 F.3d 71, 75-76 (1st Cir. 2007), we believe that, in this case,
those limits have not been breached.
The government also calumnizes the district court's
consideration of the relative length of the coconspirators'
sentences. That calumny has a certain superficial appeal: after
all, section 3553(a)(6) aims primarily at the minimization of
disparities among defendants nationally, see United States v.
Navedo-Concepción, 450 F.3d 54, 60 (1st Cir. 2006); Smith, 445 F.3d
at 5, not at disparities among codefendants in a conspiracy.
That does not mean, however, that the government's
criticism adds up to a winning argument. A subpart of section
-16-
3553(a) directs a sentencing court to consider the need for a
sentence to "promote respect for the law, and to provide just
punishment for the offense." 18 U.S.C. § 3553(a)(2)(A). As the
Gall Court observed, respect for the law diminishes if natural
principles of justice, such as the principle that punishment should
correlate with culpability, are ignored. See Gall, 128 S. Ct. at
599. With this thought in mind, we have on several occasions
recognized that district courts have discretion, in appropriate
cases, to align codefendants' sentences somewhat in order to
reflect comparable degrees of culpability — at least in those cases
where disparities are conspicuous and threaten to undermine
confidence in the criminal justice system. See, e.g., United
States v. Cirilo-Muñoz, 504 F.3d 106, 125-27 (1st Cir. 2007); id.
at 134 (Lipez, J., concurring); United States v. Tejeda, 481 F.3d
44, 60 (1st Cir. 2007); United States v. Vázquez-Rivera, 470 F.3d
443, 449 (1st Cir. 2006).
The government's better argument may be that because the
codefendants themselves received individualized sentences, those
sentences are not fair congeners. As a matter of logic, this point
is well-taken: insofar as defendants are measured and sentenced as
individuals, their sentences' commensurability with one another
proportionally decreases. But this construct easily can be turned
on its head. A quick canvass of the codefendants' sentences
reveals that the majority were variant, below-the-range sentences,
-17-
and a remarkable number of those sentences premised downward
deviations on reasons quite similar to those proffered by the
district court in the instant case.5 It follows that the
government is incorrect in positing that the coconspirators'
situations are entirely incommensurable. Cf. Kimbrough, 128 S. Ct.
at 574 (explaining that "some departures from [national] uniformity
were a necessary cost of the remedy" that the Booker Court
adopted).
The government presents another reason why the grounds
relied on by the sentencing court are insufficient. To this end,
it says that, for the most part, those grounds are overly generic.
We do not agree.
It is true, of course, that the grounds on which the
district court relied, writ large, are not unique. Virtually all
offenders mouth the vocabulary of contrition when the day of
reckoning looms; many offenders have families who would be helpful
in rehabilitation; some (perhaps not so many) have a readily
detectable potential for rehabilitation; and some (occasionally
may) have coconspirators who receive disparate sentences. Yet,
5
Of twenty-four coconspirators sentenced thus far, the
district court sentenced three above their GSRs owing to mandatory
minimum sentences. Another four were sentenced within their GSRs,
owing in part to safety valve reductions. See USSG §5C1.2. Of the
remainder, only two were sentenced within their GSRs, and six
(including the defendant) received downward deviations on account
of some combination of family circumstances, a potential for
rehabilitation, or a perceived need to minimize sentencing
disparities among coconspirators.
-18-
such factors often involve matters of degree (here, for example,
the sentencing court found that the defendant's family was
unusually supportive; that the sincerity of his remorse, together
with his character and personality traits, indicated a capacity for
rehabilitation not frequently seen in recidivist defendants; that
he had "demonstrated an unusually strong commitment to a law-
abiding life;" and that "after he [has] served his very difficult
sentence, he will stay on the right path and be the sort of person
that he now wants to be").
Equally as important, sentencing decisions represent
instances in which the whole sometimes can be greater than the sum
of the constituent parts. So here: it is the complex of factors —
their presence in combination — that verges on the unique. The
factors themselves, if viewed in isolation, present a distorted
picture.
In all events, what matters most is that the sentencing
court made plain just how this defendant stood out from the mine-
run of criminal defendants and why he, as an individual, deserved
mitigation. No more was exigible to blunt the government's charge
that the sentence imposed is insupportable because the district
court mistook the commonplace for the unique.
This brings us to the more amorphous issue of the overall
reasonableness of the sentence. In this regard, it is difficult to
-19-
do more than describe our reasons for trusting in the district
court's exercise of its discretion.
The transcript of the disposition hearing reveals that
the court took full account of the guidelines, considered each and
all of the factors enumerated in section 3553(a), and pondered the
prospect of rehabilitation and the defendant's relative
culpability. The man before the court already had spent two years
in prison while awaiting sentence. The court believed that it saw
a changed man, who would return to the bosom of a committed and
loving family after his release. The court had sentenced many of
the other members of the same conspiracy and knew in detail how
their crimes and their participation stacked up against the
defendant's. Convinced that the defendant would not re-offend and
that fairness as among similarly situated codefendants would be
served, the court deviated downward from the GSR by 91 months.
We readily acknowledge that this is a significant
variance, but what remains — 144 months — is by no measure a
trivial restriction of the defendant's liberty. Indeed, the
duration of the sentence is two years greater than the mandatory
minimum sentence that Congress has prescribed for the crime of
conviction, see 21 U.S.C. § 841(b)(1)(B), and hardly qualifies as
a powder-puff sentence.
Post-Booker, we made clear that the linchpin of a
reasonable sentence is a plausible sentencing rationale and a
-20-
defensible result. Jiménez-Beltre, 440 F.3d at 519. Gall has not
dissipated the force of that conclusion; what it has done, however,
is to emphasize both the amount of play that exists in the joints
and the degree of respectful deference that is owed to the
sentencing court's exercise of its informed discretion. The
sentence imposed here is grounded on a sensible (though not
obligatory) view of the circumstances and the outcome — given those
circumstances and the length of the sentence actually imposed — is
plainly defensible. We think it follows that the sentence passes
muster under the Gall standard and is, therefore, substantively
reasonable.
In a last-ditch effort to turn the tide, the government
suggests that the 144-month sentence is unreasonable because it
placed the defendant within the GSR that would have obtained had he
not been a career offender. In the government's view, this outcome
effectively nullifies Congress's intent to punish recidivism more
severely. See 28 U.S.C. § 994(h) (directing the Sentencing
Commission, with respect to career offenders, to "assure that the
guidelines specify a sentence to a term of imprisonment at or near
the maximum term authorized"); see also United States v. Caraballo,
447 F.3d 26, 27-28 (1st Cir. 2006).
We believe that this suggestion is wide of the mark. The
Supreme Court's recent decision in Kimbrough, 128 S. Ct. at 574-75,
opened the door for a sentencing court to deviate from the
-21-
guidelines in an individual case even though that deviation
seemingly contravenes a broad policy pronouncement of the
Sentencing Commission. Here the district court grounded the
defendant's sentence in case-specific considerations, which is the
accepted practice in the post-Gall world. See Grossman, ___ F.3d
at ___ [2008 WL 160612, at *5].
To say more about the defendant's sentence would be
supererogatory. Given the totality of the circumstances, we cannot
say that the sentence imposed represents either an unreasonable
application of the factors enumerated in section 3553(a) or an
impermissible repudiation of the policies embodied in the
sentencing guidelines. Accordingly, we conclude that the district
court did not abuse its discretion in imposing the sentence.
There is one loose end: the Memorandum (a document that
purported to explicate the sentencing court's rationale). To
begin, we take a dim view of the timing; the Memorandum was not
issued until nearly a year after sentence was imposed and after
this case had been briefed on appeal. That timing is problematic
because the applicable statute requires the district court "at the
time of sentencing, [to] state in open court the reasons for its
imposition of the particular sentence." 18 U.S.C. § 3553(c)
(emphasis supplied).6 The defendant has a right to be present when
6
The court must then reduce this statement, contemporaneously
or nearly so, to writing and attach it to the judgment. See 18
U.S.C. § 3553(c)(2). With respect to that near-contemporaneous
-22-
this is done, as does the prosecutor. Both are entitled to an on-
the-spot opportunity to respond to the sentencing court's
rationale, and the issuance of a belated sentencing memorandum
frustrates this desirable goal.
Relatedly, "[a]s a general rule, with only limited
exceptions, entry of a notice of appeal divests the district court
of jurisdiction to adjudicate any matters related to [an] appeal."
United States v. Distasio, 820 F.2d 20, 23 (1st Cir. 1987). The
district court's attempt to explain its sentencing rationale, well
after the filing of a notice of appeal, transgresses the spirit, if
not the letter, of this rule. Introducing such a wild card into
the deck is conducive to confusion. See United States v. Brooks,
145 F.3d 446, 456 (1st Cir. 1998).
Finally, when the district court files a tardy sentencing
memorandum after an appeal has been taken, it runs a risk of
creating an unwelcome appearance of partisanship. Its writing
understandably may be viewed by the appealing party as a quasi-
brief, filed as a way of defending the sentence against the appeal.
See United States v. Pelullo, 14 F.3d 881, 907 (3d Cir. 1994)
writing, we have stated that "where a district court's oral
expression of its sentencing rationale varies materially from its
subsequent written expression of that rationale, appellate courts
have tended to honor the former at the expense of the latter."
United States v. Vega-Ortiz, 425 F.3d 20, 22 (1st Cir. 2005)
(quoting United States v. Cali, 87 F.3d 571, 579 (1st Cir. 1996)).
-23-
(noting that the "delayed filing" of such a memorandum "may raise
suspicions of partiality").
Despite these obvious drawbacks, we are reluctant to rule
out any and all use of such post-judgment memoranda. The case law
indicates that there may be circumstances in which an appellate
court appropriately may consider such a post-judgment memorandum.
See, e.g., United States v. Bennett, 161 F.3d 171, 185-87 (3d Cir.
1998); see also In re Silberkraus, 336 F.3d 864, 869 (9th Cir.
2003) (holding that a bankruptcy court retained jurisdiction to
publish written findings of fact and conclusions of law after
notice of appeal had been filed); cf. Gibbs v. Buck, 307 U.S. 66,
78 (1939) (holding that, despite district court's issuance of
findings of fact and conclusions of law after appeal had been
taken, "[i]t would be useless . . . to reverse the order . . . and
remand the cause" only to have the same findings and conclusions
re-entered); Aoude v. Mobil Oil Corp., 862 F.2d 890, 895 (1st Cir.
1988) (similar). We conclude, therefore, that a federal appellate
court has the discretion, in an appropriate case, to accept a post-
judgment memorandum (including but not limited to a post-judgment
sentencing memorandum)7 even if it is not filed by the district
court until after the docketing of a notice of appeal.
7
Although this case involves a post-judgment, post-appeal
sentencing memorandum, the same pernicious practice has gained some
currency in civil cases. That is an area in which it is even more
mischievous.
-24-
Still, the drawbacks of such belated filings are real.
In the interests of fairness, therefore, the discretion to accept
and rely upon them should be exercised sparingly.8 District courts
should be encouraged to explain their sentences at the time of
sentencing and to eschew belated post-judgment amplifications. In
those few situations in which amplification is deemed necessary,
the sentencing court should act expeditiously so as to avoid
interference with either the appellate process or the parties'
rights. The sentencing court also should be mindful that the court
of appeals has the authority, should it deem further explanation
either necessary or desirable, to retain appellate jurisdiction and
remand to the district court for that explanation. See, e.g.,
United States v. Quinones, 26 F.3d 213, 219-20 (1st Cir. 1994).
Such a procedure presents none of the concerns raised by a
sentencing court's unilateral decision belatedly to file a post-
judgment, post-appeal sentencing memorandum.9
8
In an effort to balance the advantages and disadvantages
presented by district courts' use of post-judgment, post-appeal
memoranda, one court of appeals has promulgated a rule regulating
the submission of such memoranda. See 3d Cir. R. 3.1 (allowing
district courts to issue memoranda within fifteen days following
the filing of appeal). The Third Circuit has indicated that, in
promulgating its rule, it did not intend either to encourage that
practice or to alter the usual custom of issuing memoranda in a
timely manner, contemporaneous with the entry of judgment and prior
to the taking of an appeal. See id., committee cmt.
9
In seeking strongly to discourage elaborations done long
after the entry of judgment, we intend no criticism of the able
district judge who authored the Memorandum. There has been a slow
escalation of this practice in the First Circuit, and this court
-25-
In this case, we need not probe the point more deeply.
Refined to its bare essence, the Memorandum essentially restates
(albeit more expansively) the three elements on which the district
court relied in imposing the sentence. Nothing contained in it
adds incrementally to our assessment of the reasonableness vel non
of the sentence. We therefore have exercised our discretion in
favor of setting the Memorandum to one side and have not considered
its contents in our evaluation of the substantive reasonableness of
the defendant's sentence.
We need go no further. Under Booker and Gall, there is
a heavy emphasis on a sentencing court's informed discretion. In
this instance, the sentencing court exercised that discretion and
chose leniency. In the process, it offered a plausible rationale
and reached a defensible result. Consequently, we uphold its
sentencing determination despite the fact that the defendant
received the benefit of a substantial downward deviation from his
guideline sentencing range.
Affirmed.
has not hitherto had an opportunity to express its views. Many of
us have been trial judges and we recognize the immense pressures on
district courts and the understandable desire of busy trial judges
not to invest time and effort in extravagant explanations that may
prove to be unnecessary. But as we have noted above, the
disadvantages of the practice are substantial.
-26-
United States v. Martin
Court: Court of Appeals for the First Circuit
Date filed: 2008-03-21
Citations: 520 F.3d 87
Copy CitationsCombined Opinion