PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-4789
ULYSSES RAY EVANS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
James C. Dever III, District Judge.
(4:05-cr-00079-D)
Argued: November 2, 2007
Decided: May 27, 2008
Before MOTZ and GREGORY, Circuit Judges,
and Claude M. HILTON, Senior United States District Judge for
the Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Motz wrote the majority opin-
ion, in which Senior Judge Hilton joined. Judge Gregory wrote a sep-
arate opinion concurring in the judgment.
COUNSEL
ARGUED: Eric Joseph Brignac, Research and Writing Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. Anne Margaret Hayes, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
2 UNITED STATES v. EVANS
Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P.
McNamara, Federal Public Defender, G. Alan DuBois, Assistant Fed-
eral Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. George E. B.
Holding, United States Attorney, Jennifer P. May-Parker, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Charged with possessing and uttering a forged security, committing
identity fraud, and possessing stolen mail, Ulysses Ray Evans pled
guilty to identity fraud pursuant to a plea agreement in which he
reserved his right to appeal a sentence in excess of the advisory
Guidelines range. The district court sentenced him to 125 months’
imprisonment, a more than 300 percent deviation from the Guidelines
range of twenty-four to thirty months.1 Evans appeals, maintaining
that his sentence is unreasonable. We placed the case in abeyance
awaiting the Supreme Court decision in Gall v. United States, 128 S.
Ct. 586 (2007). That opinion now has issued, and we affirm.
I.
In 2004, Evans purchased personal information about Wachovia
Bank account holders Robert Reed and Paul Richards. Using this
information, Evans ordered and received boxes of checks for accounts
held by Reed and Richards. Over the next several months, Evans
negotiated many fraudulent checks on Reed’s and Richards’ accounts.
This identity theft caused substantial financial losses to a number of
businesses, as well as significant financial hardship and emotional
suffering for the victims.
1
Evans contends that his sentence is 416 percent above the high end
of the Guidelines range; however, his 125-month sentence is 416 percent
of but only 316 percent greater than a thirty month term of imprison-
ment.
UNITED STATES v. EVANS 3
On October 17, 2004, Reed contacted the local police department
in Winterville, North Carolina, to report that someone had fraudu-
lently written numerous checks, totaling $4,774.80, on his account to
various local businesses. After investigation, police officers discov-
ered that Evans had negotiated the stolen checks on the Reed account
and had in fact written fifty-four checks on that account between
October 9 and October 19, 2004. Police contacted Evans and arranged
for him to surrender himself — but Evans then failed to do so.
On November 30, 2004, a Wachovia fraud investigator notified
postal inspectors that Richards’ account had been compromised. A
person later identified as Evans impersonated Richards, changed the
account’s address to a residence in Charlotte, North Carolina, and
ordered a box of checks delivered to the new address. Between
November 17, 2004, and December 22, 2004, Evans negotiated sixty-
four checks on the Richards account. Police arrested Evans at the
Charlotte address on December 2, 2004.
When postal inspectors later interviewed Evans, he admitted to
purchasing personal information about Reed and Richards from a
childhood friend employed by Wachovia Bank. He also told the
inspectors that he wrote fake driver’s license numbers and social
security numbers on the checks, and that he had false identification
cards made in Reed’s and Richards’ names.
Evans’ fraudulent negotiation of these checks caused an aggregate
loss of $13,634.89 to businesses in North Carolina, South Carolina,
and Virginia. He used seven social security numbers (six belonging
to actual persons) and ten driver’s license numbers (all belonging to
actual persons) to negotiate the checks.
Furthermore, Evans told authorities that between June 2004 and his
arrest in September 2005, he bought approximately ten to twenty false
identification cards in order to perpetrate additional identity theft
crimes using the personal information of new potential victims that he
had obtained. Evans successfully committed identity theft with at
least one new victim’s information.
Following his arrest and indictment for these crimes, Evans agreed
to plead guilty to identity theft. In his plea agreement, Evans recog-
4 UNITED STATES v. EVANS
nized that the court might sentence him to imprisonment for a term
of up to fifteen years (or 180 months) without parole.
The probation department prepared a Prehearing Sentence Report
(PSR), which described Evans’ crimes and the severe repercussions
for his victims. The PSR related that Richards and his wife informed
a probation officer that they had lost their faith in "the system" and
felt violated because Evans had compromised their personal informa-
tion. They believed that his actions had damaged their reputations and
worried that they could not write checks for fear that stores would not
accept those checks. The Richardses viewed the crimes as a "night-
mare," and the probation officer observed that "[t]he Richards are still
suffering the long lasting effects of their information being stolen and
used in an illegal fashion."
Robert Reed and his wife similarly told the probation officer they
had spent substantial time, as well as money, to rectify the harm
Evans had caused them. They said they had communicated with eight
different police departments regarding the checks that Evans forged.
The Reeds explained that Evans’ crime had permanently affected
them and they feared for their safety and worried about who else
might have their personal information. The Reeds also related that
they had been threatened with a civil lawsuit, arrest, and prosecution
because of Evans’ actions.2
The PSR also set forth Evans’ extensive criminal history. It listed
forty-five prior convictions, most of which involved false pretenses,
use of fraudulent checks, forgery, or other fraud. In regard to his most
recent prior offense, the PSR noted that Evans had been convicted in
federal court for various fraud charges arising from his use of individ-
uals’ credit reports to obtain credit cards and withdraw money in their
names. Further, Evans also had been convicted of an additional eigh-
teen nonscoreable offenses and had violated probation fifteen times.
The PSR calculated the appropriate advisory Guidelines range
using the 2005 edition of the U.S. Sentencing Commission Guidelines
Manual (U.S.S.G.). Under U.S.S.G. § 2B1.1, Evans’ crimes war-
2
The Reeds additionally submitted a victim-impact letter to the district
court, and Mrs. Reed testified at Evans’ sentencing hearing.
UNITED STATES v. EVANS 5
ranted an initial offense level of twelve, beginning with a base offense
level of six, adding four levels due to the amount of money involved,
and adding another two levels due to the number of victims affected.
See U.S.S.G. § 2B1.1(a)(2), (b)(1)(C), (b)(2)(A). The PSR recom-
mended a reduction of two levels, because Evans accepted responsi-
bility for his actions. See U.S.S.G. § 3E1.1(a)). Thus, Evans received
a final total offense level of ten. That level, coupled with a criminal
history category of VI, led to an advisory Guidelines range of twenty-
four to thirty months. The Government then moved, pursuant to
U.S.S.G. § 5K1.1, for a downward departure from the Guidelines
range based on Evans’ assistance in prosecuting the bank employee
who sold Evans the victims’ personal information.
The district court notified the parties that it contemplated an
upward deviation from the advisory Guidelines range because the
court believed the range underrepresented Evans’ "substantial crimi-
nal history" and "understate[d] the seriousness" of Evans’ offenses.
The court then held a thorough sentencing hearing at which it care-
fully considered the arguments of both sides. At the conclusion of the
hearing, the court explained at length its grounds for rejecting the
Government’s motion for a downward departure and instead deviating
upward from the Guidelines range to sentence Evans to 125 months’
imprisonment. The court also issued a fifteen-page written opinion
detailing its reasons for concluding that this sentence presented no
conflict with the Guidelines and best furthered the factors set forth in
18 U.S.C. § 3553(a) (2000). Evans noted a timely appeal, principally
contending that the Guidelines themselves do not permit the district
court to impose this sentence, and so we must find it unreasonable.
II.
Gall and its companion case, Kimbrough v. United States, 128 S.
Ct. 558 (2007), and Rita v. United States, 127 S. Ct. 2456 (2007), sup-
ply the precedent governing Evans’ challenges to his sentence. These
cases unequivocally establish that: (1) the advisory Sentencing Guide-
lines, although important, simply do not have the preeminent and
dominant role that Evans claims for them, and (2) an appellate court
must defer to the trial court and can reverse a sentence only if it is
unreasonable, even if the sentence would not have been the choice of
the appellate court.
6 UNITED STATES v. EVANS
A.
With respect to the first principle — the role of the Guidelines in
sentencing determinations — of course, a district court must begin
"by correctly calculating the applicable Guidelines range." Gall, 128
S. Ct. at 596. Thus, "[t]he sentencing judge, as a matter of process,
will normally begin by considering the presentence report and its
interpretation of the Guidelines." Rita, 127 S. Ct. at 2465. But even
though the Guidelines are "the starting point and the initial bench-
mark," they "are not the only consideration." Gall, 128 S. Ct. at 596.
Indeed, a district court may not even "presume that the Guidelines
range is reasonable." Id. at 596-97; see also Rita, 127 S. Ct. at 2465.
Instead, the district court must "giv[e] both parties an opportunity to
argue for whatever sentence they deem appropriate" and "then con-
sider all of the § 3553(a) factors to determine whether they support
the sentence requested by a party." Gall, 128 S. Ct. at 596 (emphasis
added); see also Kimbrough, 128 S. Ct. at 564 (reiterating that the
"Guidelines range" is just one of "the array of factors warranting con-
sideration" by the sentencing judge). In each case, the court "must
make an individualized assessment based on the facts presented."
Gall, 128 S. Ct. at 597. A district court may reject a sentence within
the advisory Guidelines range because "the case at hand falls outside
the ‘heartland’" to which the individual Guidelines apply or because
a sentence within the Guidelines fails to reflect the other § 3553(a)
factors or "because the case warrants a different sentence regardless."
Rita, 127 S. Ct. at 2465.
If the district court decides to impose a sentence outside the Guide-
lines range, it must ensure that its justification supports the "degree
of the variance"; thus, "a major departure should be supported by a
more significant justification than a minor one." Gall, 128 S. Ct. at
597. But a district court need not justify a sentence outside the Guide-
lines range with a finding of "extraordinary" circumstances. Id. at
595, 602 (upholding a sentence of thirty-six months’ probation, a 100
percent downward deviation from the Guidelines range of thirty to
thirty-seven months’ imprisonment). And in fact, as the Solicitor
General conceded in Kimbrough, a sentencing judge may "vary from
Guidelines ranges based solely on policy considerations, including
disagreements with the Guidelines." 128 S. Ct. at 570, 576 (internal
UNITED STATES v. EVANS 7
quotation marks and alterations omitted) (upholding a sentence of 180
months’ imprisonment, a 21 percent downward deviation from the
Guidelines range of 228 to 270 months).
B.
With respect to the second principle — the role of a reviewing
court — Gall, Kimbrough, and Rita are just as clear. An appellate
court reviews a sentence only "under a deferential abuse-of-discretion
standard," regardless of whether the sentence imposed is "inside, just
outside, or significantly outside the Guidelines range." Gall, 128 S.
Ct. at 591. Initial review is for "significant procedural error," ensuring
that the district court has not, for example,
fail[ed] to calculate (or improperly calculat[ed]) the Guide-
lines range, treat[ed] the Guidelines as mandatory, fail[ed]
to consider the § 3553(a) factors, select[ed] a sentence based
on clearly erroneous facts, or fail[ed] to adequately explain
the chosen sentence — including an explanation for any
deviation from the Guidelines range.
Id. at 597. Then an appellate court "consider[s] the substantive rea-
sonableness of the sentence imposed." Id. At this stage of review, the
court will
take into account the totality of the circumstances, including
the extent of any variance from the Guidelines range. If the
sentence is within the Guidelines range, the appellate court
may, but is not required to, apply a presumption of reason-
ableness. But if the sentence is outside the Guidelines range,
the court may not apply a presumption of unreasonableness.
It may consider the extent of the deviation, but must give
due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the vari-
ance.
Id. (emphasis added) (citation omitted).
Gall explicitly cautions that "[t]he fact that the appellate court
might reasonably have concluded that a different sentence was appro-
8 UNITED STATES v. EVANS
priate is insufficient to justify reversal of the district court." Id. "[I]t
is not for the Court of Appeals to decide de novo whether the justifi-
cation for a variance is sufficient or the sentence reasonable." Id. at
602. Rather, "the Court of Appeals should [give] due deference to the
District Court’s reasoned and reasonable decision that the § 3553(a)
factors, on the whole, justif[y] the sentence." Id. Deference is required
because "[t]he sentencing judge is in a superior position to find facts
and judge their import under § 3553(a) in the individual case." Id. at
597 (quoting Br. for Fed. Pub. & Cmty. Defenders et al. as Amici
Curiae at 16). "Moreover, ‘[d]istrict courts have an institutional
advantage over appellate courts in making these sorts of determina-
tions . . . as they see so many more Guidelines sentences than appel-
late courts do.’" Id. at 598 (quoting Koon v. United States, 518 U.S.
81, 98 (1996)).
Kimbrough again emphasizes the need for an appellate court to
defer to the district court’s assessment of whether a within-Guidelines
sentence would adequately serve sentencing objectives and whether
attempts to achieve uniformity across defendants convicted of similar
crimes would work an injustice in a particular case. 128 S. Ct. at 574-
75 (noting that "some departures from uniformity were a necessary
cost of the remedy" adopted in Booker). Thus, the Kimbrough Court
held that, "[g]iving due respect to the District Court’s reasoned
appraisal" of both the "particular circumstances of [the defendant’s]
case" and the views of the Sentencing Commission, "a reviewing
court could not rationally conclude" that the sentence awarded "quali-
fied as an abuse of discretion," even though it was well outside the
prescribed Guidelines range and relied heavily on a single sentencing
factor. Id. at 576.
With these governing principles in mind, we turn to the case at
hand.
III.
We first review Evans’ sentence for reasonableness, as Gall, Kim-
brough, and Rita require. We then consider Evans’ two specific chal-
lenges to the sentence.
UNITED STATES v. EVANS 9
A.
As Gall instructs, we initially review for "significant procedural
error." 128 S. Ct. at 597. In arriving at the sentence it selected, the
district court expressly adopted the presentence report, which prop-
erly calculated the advisory Guidelines range. The court did not treat
the Guidelines as mandatory; rather it gave the parties an opportunity
to argue for whatever sentence they deemed appropriate, and it con-
sidered all of the § 3553(a) factors. It then imposed a sentence based
on facts not challenged by Evans and provided an explanation for its
deviation from the Guidelines range.
Because the court properly engaged in each of these analytical
steps and thoroughly explained its reasoning supporting the sentence,
we find no evidence of procedural error, let alone "significant proce-
dural error." See id. Accordingly, we are left to review only for "sub-
stantive reasonableness" and to assess "whether the District Judge
abused his discretion in determining that the § 3553(a) factors sup-
ported [the] sentence . . . and justified [the] substantial deviation from
the Guidelines range." Id. at 597, 600.
In determining what sentence to impose, the district court carefully
considered the PSR, the Reeds’ victim impact letter, and Mrs. Reed’s
testimony. The PSR detailed the vast extent of Evans’ prior criminal
activity and his victims’ account of the substantial harm he caused
them. Evans offered no contrary evidence. The district court found the
PSR credible and specifically adopted its findings.
The district court then found that Evans had "repeatedly perpe-
trated fraud and theft crimes" but, prior to 2002, had served relatively
little time in jail despite "his repeated criminal conduct." The record
provides ample support for this finding — in fact, in the eleven years
between 1991 and 2001, Evans was convicted of forty-three crimes,
most of which involved fraud, but he received only sentences of pro-
bation or imprisonment for less than a year for nearly all of these
offenses.
The court further found that even when Evans was convicted in
2002 in the Western District of North Carolina for various federal
frauds and sentenced to forty-six months’ imprisonment and three
10 UNITED STATES v. EVANS
years of supervised release, this more serious penalty did not deter
him from engaging in additional fraud while on supervised release.
The court noted that "Evans still owes $236,439.68 in restitution" for
the crimes committed in the Western District, although he had
secured possession of "a Mercedes and Lexus following his release
from prison" for those crimes.
The court concluded that Evans had "displayed manifest contempt
for the legal system, the law, and his victims." It observed that,
"[t]ime after time, Evans has committed economic crimes, received
short sentences, and failed to comply with conditions of probation or
supervised release." The court noted that as "technology has
advanced, Evans’ schemes have advanced from forging checks to
obtaining credit card information and perpetuating more far-reaching
and sophisticated fraud."
On the basis of these facts, the district court determined that a sen-
tence of 125 months’ imprisonment served the factors set forth in
§ 3553(a). The court explained that, in its view, Evans simply would
not be deterred from continued criminal conduct "absent a lengthy
sentence." Thus, it concluded that a 125-month sentence was neces-
sary in order to "promote[ ] respect for the law, provide[ ] just punish-
ment for the offense, afford[ ] adequate deterrence to criminal
conduct (both as to Evans personally and others like him), and pro-
tect[ ] the public from further crimes of the defendant." In 18 U.S.C.
§ 3553(a), Congress has mandated that a sentencing court consider
these precise factors and choose a sentence that "reflect[s] the serious-
ness of the offense," "promote[s] respect for the law," "provide[s] just
punishment for the offense," "afford[s] adequate deterrence to crimi-
nal conduct," and "protect[s] the public from further crimes of the
defendant." Although the deviation from the Guidelines range in this
case clearly is significant, the district court provided "significant justi-
fication" for the degree of the deviation, which is all that is required.
See Gall, 128 S. Ct. at 597.
The district court carefully and thoroughly applied the prescribed
sentencing factors to the facts of the case, and it "adequately
explain[ed] the chosen sentence." See id. The court’s approach both
"promote[s] the perception of fair sentencing" and allows us to
engage in "meaningful appellate review." See id. Therefore, given the
UNITED STATES v. EVANS 11
requisite deference we must accord to the considered judgment of the
district court, we can only conclude that the chosen sentence is rea-
sonable even though it does represent a significant upward deviation
from the Guidelines range. See id.
B.
Nevertheless, Evans challenges the reasonableness of his sentence
on two grounds. Gall, Kimbrough, and Rita foreclose both challenges.
1.
First, and chiefly, Evans contends that the Guidelines them-
selves do not allow the district court to impose his sentence. In addi-
tion to relying on § 3553(a) factors, as outlined above, the district
court also believed that U.S.S.G. §§ 2B1.1, cmt. n. 19(A), and 4A1.3,
p.s., justified its substantial upward deviation from the advisory
Guidelines range.3 Evans strenuously argues that neither of these
Guidelines provisions permits an upward deviation here, and there-
fore we must find the sentence unreasonable. The fundamental flaw
with this argument is that, even if Evans is correct and the Guidelines
themselves do not sanction the deviation here, the sentence remains
reasonable because it properly reflects the § 3553(a) considerations.
Of course, when sentencing, the district court must begin by cor-
rectly calculating the applicable Guidelines range. Gall, 128 S. Ct. at
596. Failure to do so would be a significant procedural error. Id. at
597. But in the present case, the district court correctly calculated the
Guidelines range as required, and Evans does not argue to the con-
trary.
As the Supreme Court explained in Rita, after completing the pro-
cess of determining the appropriate Guidelines range, the district
3
Section 2B1.1, comment n. 19(A) provides that an upward departure
may be warranted when the Guidelines range "substantially understates
the seriousness of the offense." Section 4A1.3(a)(1), p.s., allows for an
upward departure if the court believes that the criminal history category
"substantially under-represents the seriousness of the defendant’s crimi-
nal history."
12 UNITED STATES v. EVANS
court then considers whether a "Guidelines sentence should not
apply." 127 S. Ct. at 2465. Rita expressly recognizes that a district
court may conclude that a Guidelines sentence "should not apply"
because "the case at hand falls outside the ‘heartland’ to which the
Commission intends individual Guidelines to apply [citing Guidelines
departure provision]" or "because the Guidelines sentence itself fails
properly to reflect § 3553(a) considerations" or "because the case
warrants a different sentence regardless." Id.
Gall and Rita thus firmly establish that although adherence to the
advisory Guidelines departure provisions provides one way for a dis-
trict court to fashion a reasonable sentence outside the Guidelines
range, it is not the only way. Rather, after calculating the correct
Guidelines range, if the district court determines that a sentence out-
side that range is appropriate, it may base its sentence on the Guide-
lines departure provisions or on other factors so long as it provides
adequate justification for the deviation.
When reviewing the sentence selected by the district court, regard-
less of whether the court deviates from the advisory Guidelines range
because of a Guidelines-sanctioned departure, or because of one or
more § 3553(a) factors, or because of some other reason — that is,
no matter what provides the basis for a deviation from the Guidelines
range — we review the resulting sentence only for reasonableness.
See Gall, 128 S. Ct. at 597; Rita, 127 S. Ct. at 2465.
Furthermore, we must look to "the totality of the circumstances" to
determine whether the ultimate sentence is reasonable. Gall, 128 S.
Ct. at 597. When, as here, a district court offers two or more indepen-
dent rationales for its deviation, an appellate court cannot hold the
sentence unreasonable if the appellate court finds fault with just one
of these rationales. Picking through the district court’s analysis in that
manner would be wholly inconsistent with the Supreme Court’s direc-
tives to examine the "totality of the circumstances," id., and to defer
to the considered judgment of the district court. See id. at 597-98,
602; Kimbrough, 128 S. Ct. at 576; Rita, 127 S. Ct. at 2465, 2469;
see also United States v. Martin, 455 F.3d 1227, 1237 (11th Cir.
2006) (explaining that the appellate court does not review each deci-
sion made by the sentencing court for reasonableness, but rather con-
siders only the final sentence, in its entirety, for reasonableness).
UNITED STATES v. EVANS 13
In this case, the district court found that both the Guideline depar-
ture provisions and the § 3553(a) factors supported its sentence of
125 months. Although Evans challenges — at length — the court’s
analysis of the Guidelines departure provisions, he offers no argument
that application of the § 3553(a) factors does not justify his sentence.
As explained above, the record provides abundant support for the dis-
trict court’s conclusion that the § 3553(a) factors support the sen-
tence. Accordingly, even assuming the district court erred in applying
the Guideline departure provisions, Evans’ sentence, which is well-
justified by § 3553(a) factors, is reasonable.4
2.
Evans’ sole remaining argument focuses on the extent of the
upward deviation from the advisory Guidelines range. Relying on
some of our pre-Rita and pre-Gall precedent, e.g., United States v.
Moreland, 437 F.3d 424 (4th Cir. 2006), and United States v. Khan,
461 F.3d 477 (4th Cir. 2006), Evans contends that his sentence must
be reversed because it is not supported by the "exceptionally compel-
ling" reasons necessary to sustain this very significant deviation from
4
This is not to say that an error in applying the departure provisions
of the advisory Guidelines is irrelevant to our review. When the district
court imposes a non-Guidelines sentence based on a correct application
of the Guideline departure provisions, the resulting sentence reflects the
judgment of both the district court and the Commission that a non-
Guidelines sentence is appropriate. See Rita, 127 S. Ct. at 2465. Particu-
larly in cases in which the district court has imposed a sentence substan-
tially outside the Guidelines range, the Commission’s judgment will
certainly provide one compelling justification for the departure. See Kim-
brough, 128 S. Ct. at 575-76. Conversely, when a non-Guidelines sen-
tence runs directly counter to the Commission’s position, either because
the district court has erroneously applied the departure provisions or
because it has determined in a "mine-run case" that the Guidelines range
fails to reflect the § 3553(a) factors, "closer review may be in order." Id.
at 574-75. But the Commission’s position as to when a sentence outside
the Guidelines range is appropriate is only one of the factors we consider
to "ensure that the [district court’s] justification is sufficiently compel-
ling," and, regardless of whether the district court has agreed or dis-
agreed with the Commission, we may only review the reasonableness of
the sentence imposed. Gall, 128 S. Ct. at 597.
14 UNITED STATES v. EVANS
the Guidelines range. Whatever support these cases may have once
provided for this argument, Gall undermines it, if not rendering it
wholly meritless.
In Gall, after acknowledging the relevance of the difference
between the imposed sentence and the recommended Guidelines
range, the Court explicitly rejected "an appellate rule that requires
‘extraordinary’ circumstances to justify a sentence outside the Guide-
lines range." 128 S. Ct. at 595. Such an approach, the Court
explained, would "reflect a practice . . . of applying a heightened stan-
dard of review to sentences outside the Guidelines range," which it
found "inconsistent with the rule that the abuse-of-discretion standard
of review applies to appellate review of all sentencing decisions —
whether inside or outside the Guidelines range." Id. at 596.
To be sure, requiring "compelling" justifications for a deviation
sentence may reflect a standard different than the "extraordinary cir-
cumstances" test imposed by the Eighth Circuit and invalidated in
Gall. Yet, as the Gall Court observed, applying a uniform, heightened
standard of review for all variances sentences "come[s] too close to
creating an impermissible presumption of unreasonableness for sen-
tences outside the Guidelines range," an approach the Court previ-
ously had rejected in Rita. See id. at 595 (citing Rita, 127 S. Ct. at
2467). Therefore, if a district court "decides that an outside-
Guidelines sentence is warranted," it need only "ensure that the justi-
fication is sufficiently compelling to support the degree of the vari-
ance." Id. at 597 (emphasis added).
On review, we may still "consider the extent of the deviation, but
[we] 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.
Gall reinforces the wisdom that appellate courts must not lightly dis-
turb the judgment of district judges, given their on-the-scene, "supe-
rior position." Id. Accordingly, we must review all sentences, even
those "significantly outside the Guidelines range . . . under a deferen-
tial abuse-of-discretion standard." Id. at 591. Thus, Gall prohibits us
from doing what Evans requests; we cannot disregard the considered
UNITED STATES v. EVANS 15
reasoning of the district court and require "exceptionally compelling"
justification for a sentence significantly outside the Guidelines range.5
C.
In sum, the sentence selected by the district court is reasonable, and
we find Evans’ arguments to the contrary unavailing. The district
court recognized that the Guidelines served as "the starting point and
the initial benchmark" for sentencing determinations. See id. at 596.
It then carefully considered the § 3553(a) factors and fashioned a sen-
tence "sufficient, but not greater than necessary, to comply with the
[federal sentencing] purposes," see 18 U.S.C. § 3553(a), and it pro-
vided ample reasons why "the § 3553(a) factors, on the whole, justi-
fied the sentence," see Gall, 128 S. Ct. at 602. Therefore, since we
find neither "significant procedural error" nor evidence of any "sub-
stantive [un]reasonableness," see id. at 597, we hold that the district
court did not abuse its discretion in sentencing Evans. We recognize
that the sentence imposed on Evans may not be the only reasonable
sentence, but it is a reasonable sentence, and the Supreme Court has
directed that any reasonable sentence be upheld.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
GREGORY, Circuit Judge, concurring in the judgment:
Although I concur in the result reached by the majority, I write sep-
arately to encourage a more tempered overall approach to the substan-
5
Gall similarly forecloses Evans’ heavy reliance on the fact that the
125-month sentence that the district court imposed is over 300 percent
above the high end of the advisory Guidelines range. For the Court in
Gall expressly rejected both a "rule requiring ‘proportional’ justifications
for departures from the Guidelines range," 128 S. Ct. at 594, and "the use
of a rigid mathematical formula that uses the percentage of a departure
as the standard for determining the strength of the justifications required
for a specific sentence," id. at 595.
16 UNITED STATES v. EVANS
tive reasonableness analysis. While I recognize that Gall provides the
district court with a tremendous amount of discretion, it is not limit-
less; our decision that a district court’s sentence is procedurally rea-
sonable should not mean that a subsequent finding of substantive
reasonableness is a fait accompli. Indeed, though deference to a dis-
trict court’s sentencing decision is required, the words "abuse of discre-
tion"1 cannot be a legal incantation invoked by appellate courts to
dispel meaningful substantive review of a district court’s sentence.
While I agree that Evans’s exceptional criminal history and risk of
recidivism justify the district court’s substantial variance, the majori-
ty’s reasoning could reasonably be extended to justify any sentence
up to the statutory maximum of 15 years.
The "totality of the circumstances" substantive reasonableness cal-
culus demands that we proceed beyond a formalistic review of
whether the district court recited and reviewed the § 3553(a) factors
and ensure that the sentence caters to the individual circumstances of
a defendant, yet retains a semblance of consistency with similarly sit-
uated defendants. Gall v. United States, 128 S.Ct. 586, 596-97 (2007).
There is little doubt that these objectives can be, under certain circum-
stances, countervailing and irreconcilable. Despite this analytical ten-
sion, the Supreme Court wanted the reasonableness standard of
review to "avoid excessive sentencing disparities," United States v.
Booker, 543 U.S. 220, 264 (2005), and "to iron out sentencing differ-
ences." Id. at 263; see also, Gall, 128 S.Ct. at 604 (Alito, J., dissent-
ing) ("Indeed, a major theme of the [Booker] remedial opinion, as
well as our decision last Term in [United States v. Rita, 127 S.Ct.
2456 (2007)], was that the post-Booker sentencing regime would still
promote the Sentencing Reform Act’s goal of reducing sentencing dis-
parities.")2 Thus, consistent sentencing remains a significant priority
1
The abuse of discretion standard itself is of limited use. Indeed, as
Judge Friendly once observed, "[t]here are a half dozen different defini-
tions of abuse of discretion, ranging from ones that would require the
appellate court to come close to finding that the trial court had taken
leave of its senses to others which differ from the definition of error by
only the slightest nuance, with numerous variations between the
extremes." Henry J. Friendly, Indiscretion About Discretion, 31 Emory
L.J. 747, 763 (1982) (internal quotation marks omitted).
2
Nevertheless, the Booker Court was hardly unaware of the potential
for widely divergent and unprincipled sentencing among the district
UNITED STATES v. EVANS 17
of the Court, and district courts should keep this in mind when sen-
tencing, particularly when they choose to venture beyond the cor-
rectly calculated guideline sentence.
As with all sentences, a non-guideline sentence must be "sufficient,
but not greater than necessary" to satisfy the purposes set forth in 18
U.S.C. § 3553(a)(2). Because the extent of the variance in this case
is substantial — almost eight years above the guideline range — it is
"uncontroversial that [such] a major departure should be supported by
a more significant justification than a minor one." Gall, 128 S.Ct. at
597. And as stated above, I am convinced that the district court’s rea-
soning justified its decision to significantly vary above the guideline
sentence; however, I am troubled that there are few guideposts in the
majority opinion to cabin the district court’s discretion in any signifi-
cant manner or provide any inclination as to how we would overturn
a sentence based on substantive reasonableness.
To be fair, the analysis underlying reversal on substantive reason-
ableness grounds in the post-Gall era is evolving. While I have
closely studied the post-Booker Supreme Court triumvirate of Rita,
Kimbrough v. United States, 128 S.Ct. 558 (2007), and Gall, I must
conclude that the Court has left the specifics of how appellate courts
are to conduct substantive reasonableness review, charitably speak-
ing, unclear. Inevitably, as is the nature of appellate courts, vacuums
of legal uncertainty left by the Supreme Court are quickly filled in a
circuit by circuit manner, sometimes resulting in a grab bag of possi-
ble solutions.
For example, in United States v. Pugh, 515 F.3d. 1179 (11th Cir.
2008), the Eleventh Circuit vacated and remanded the district court’s
courts. While the majority in Booker dismissed such concerns by holding
that appellate courts have had years of experience with the unreasonable-
ness standard, Justice Scalia forcefully made the point that "no one
knows — and perhaps no one is meant to know — how advisory Guide-
lines and unreasonableness review will function in practice." Booker, 543
U.S. at 311 (Scalia, J., dissenting) (internal quotation marks omitted).
Justice Scalia, in my view, presciently observed that the unreasonable-
ness standard of review will "produce a discordant symphony of different
standards, varying from court to court and judge to judge. . ." Id. at 312
(internal quotation marks omitted).
18 UNITED STATES v. EVANS
non-custodial sentence of a defendant convicted of possessing child
pornography for substantive unreasonableness. Specifically, the Elev-
enth Circuit held that the district court committed a "clear error of
judgment", id., at 1203 (internal quotation marks and citation omit-
ted), by failing to weigh "the [§ 3553(a)] factors in a manner that is
at least loosely commensurate with their importance to the case, and
in a way that achieves the purposes of sentencing stated in § 3553(a)."
Id. (internal quotation marks and citation omitted).
In United States v. Cutler, 520 F.3d 136 (2d Cir. 2008), a case with
direct application to the facts in our case, the Second Circuit reviewed
the sentence of a defendant convicted of "charges relating to exten-
sive bank frauds [over $100 million] and tax frauds [$29 million]." Id.
at 139. Despite a guideline range of 78-97 months for the defendant,
the district court sentenced him to twelve months and one day, a sen-
tence that the guidelines equate with losses of around $70,000. The
Cutler court discussed its post-Gall approach to determining whether
a sentence is substantively reasonable as follows:
Accordingly, ‘tak[ing] into account the totality of the cir-
cumstances, including the extent of any variance from the
Guidelines range,’ in order to determine whether a sentence
is substantively unreasonable, i.e., an abuse of discretion,
Gall, 128 S.Ct. at 597, we look to see whether the sentenc-
ing court erred in interpreting any of the § 3553(a) factors
or made any other error of law, whether it made any clear
error in assessing the evidence, and whether its decision was
beyond the outer limits of the range of decisions permitted
by § 3553(a).
Id. at 157-58. The Second Circuit found the district court’s sentence
to be substantively unreasonable because "[t]he implicit finding that
a fraud causing losses of more than $100,000,000 is no more serious
than one causing losses of little more than $70,000 reflects an errone-
ous interpretation of § 3553(a)(2)(A)’s requirement for punishment
that is just and is antithetical to the need to promote the perception
of fair sentencing." Id. at 161 (internal quotation marks and citation
omitted).3
3
Furthermore, the Second Circuit stated that "our review of the record
persuades us that the district court erred by disregarding the Guidelines
UNITED STATES v. EVANS 19
There can be little doubt that both the Eleventh Circuit and Second
Circuit substantive reasonableness analysis focused on what
amounted to a re-weighing of the facts in the context of § 3553(a). I
agree with this approach. While the oft-stated aphorism that district
courts are in the best position to make factual decisions and "judge
their import under § 3553(a) in the individual case" Gall, 128 S.Ct.
at 597 (internal quotation marks and citation omitted), is unassailable,
I can see no way, as a practical matter, to review the substantive rea-
sonableness of a sentence without assessing the district court’s ratio-
nale for the sentence and reviewing its application of the facts to the
guidelines and § 3553(a).4 Even if a district court reviews each of the
§ 3553(a) factors individually, its sentence is not inevitably reason-
able. To conclude otherwise would make appellate review, in effect,
a nullity.
In addition, the Second Circuit’s view that substantive review of a
district court’s decision must include an analysis of whether "its deci-
sion was beyond the outer limits of the range of decisions permitted
by § 3553(a)," Cutler, 520 F.3d at 158, is correct. Thus, in the context
of this case, it is worth reviewing a recent post-Gall appellate decision
involving financial fraud.5 In United States v. Williams, 517 F.3d 801
(5th Cir. 2008), a unanimous Fifth Circuit panel affirmed the district
court’s decision to sentence a defendant convicted of federal conspir-
provision addressing a defendant’s culpability for jointly conducted
activity, by exceeding its departure authority, and by misinterpreting cer-
tain of the § 3553(a) factors. In addition, certain of the court’s findings
are clearly erroneous, and certain of its rationales are detrimental to the
perception of fair sentencing." Id. at 158 (internal quotation marks and
citation omitted).
4
As the district court in this case clearly set out "a short clear written
statement or a reasoned statement from the bench to support its depar-
ture," United States v. Rusher, 966 F.2d 868, 882 (4th Cir. 1992) (inter-
nal quotation marks and citation omitted), I agree with its decision to
depart upward by fourteen levels.
5
Unfortunately, due to the limited time that has passed since Gall,
there are a scant number of cases that involve an appellate court consid-
ering the substantive reasonableness of a sentence involving financial
fraud. See, e.g., Cutler.
20 UNITED STATES v. EVANS
acy, fraud, money laundering, and criminal forfeiture to 172 months
imprisonment, a sentence 75 months (six years and three months)
greater than the maximum guideline sentence of 97 months. In sen-
tencing the defendant, the district court in Williams reasoned that:
Based on all the factors of this case, the tremendous prob-
lems that it caused to the individuals, all the testimony that
was presented in court, the fraud and the complexity of the
fraud, the number of states and the number of individuals,
and where these people were sought to in fact contribute to
this scheme unwittingly. The only one who knew that this
was a scheme were the ones putting this scheme together,
and the lead person in that entire scheme was Mr. Williams.
Id. at 812. The district court found that at least 297 people suffered
as a result of the defendant’s scheme and the defendant showed no
remorse during sentencing despite his role as the ring leader. United
States v. Williams, 101 Fed. Appx. 435, 437 (5th Cir. 2004). The dis-
trict court also ordered restitution in the amount of $2,995,645.20.
Comparing these facts to the instant case, Evans’s actions cost 22
businesses in North Carolina, South Carolina, and Virginia a total of
$13,634.89. The district court ordered Evans to pay these victims
$11,375.14 in restitution.
In addition, unlike the majority, I find it appropriate to review pre-
Gall caselaw from the Fourth Circuit that is relevant to this case. In
United States v. Tucker, 473 F.3d 556, 564 (4th Cir. 2007), we held
that a district court’s variance of approximately five times over the
top of the guidelines range was impermissible. Tucker pled guilty to
one count of bank fraud, in which the bank lost $70,000-$120,000.
According to the PSR, Tucker’s offense level was 13, which com-
bined with her criminal history category of IV, provided for a guide-
lines range of 24-30 months. The district court chose to sentence
Tucker to 144 months in prison because of the need to protect the
public from further crimes of the defendant, id., at 559, the nature of
the offense, and the history and characteristics of the defendant. Spe-
cifically, the district court found that Tucker, like Evans, was a "dedi-
cated thief and apparently she always will be" and "she is an [sic]
habitual thief, scheming thief." Id. (internal quotation marks omitted).
UNITED STATES v. EVANS 21
The facts here can be readily distinguished from those in Williams
and Tucker. For example, Evans, in addition to his lengthy criminal
history in the financial fraud area, was guilty of assaulting a female
on two separate occasions. Nevertheless, while the variance in this
case was justified, we must ensure that the delicate balance between
consistency and individualizing sentences does not result in a myriad
of inconsistent and intellectually incompatible sentences. In order to
prevent a veritable hodgepodge of sentencing decisions, and to "se-
cure nationwide consistency," the federal sentencing guidelines must
remain a central tenet of the sentencing calculus since they are "the
starting point and the initial benchmark" for all sentencings. Gall, 128
S.Ct. at 596.
Overall, in the instant case, the district court’s fourteen level depar-
ture and a guideline range of 100-125 months resulted in a sentence
of 125 months that was sufficient but not greater than necessary to
comply with the purposes of § 3553(a)(2). While I concur in the result
reached by the majority, I think it is necessary to urge the Court to
maintain prudent bearings as it navigates the murky waters of sub-
stantive reasonableness. We must guard against the possibility that
appellate review will become limited to "a mere formality, used by
busy appellate judges only to ensure that busy district judges say all
the right things when they explain how they have exercised their
newly restored discretion[.]" Booker, 543 U.S. at 313 (Scalia, J., dis-
senting). For our review of substantive reasonableness to have any
teeth, our analysis must take place at a level that does not intrude
upon the district court’s discretion yet still provides for a meaningful
review of the district court’s sentence. Walking this tightrope requires
deftness on our part for we must take into account the facts underly-
ing the district court’s decision, and to a certain extent, determine
whether the district court properly weighed the underlying facts. In
addition, we must review the sentence’s consistency (or lack thereof)
with similarly situated defendants.6 I believe the application of such
a cohesive and consistent analytical structure will prove to be instruc-
tive for all parties involved in the sentencing process.
6
Of course, an appellate court’s disagreement with the length of a sen-
tence is not enough, on its own, to reverse a district court on the basis
of substantive reasonableness. Gall, 128 S.Ct. at 597.