PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-5066
BERNARD E. RABY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph R. Goodwin, District Judge.
(2:05-cr-00003-ALL)
Argued: May 12, 2009
Decided: August 10, 2009
Before NIEMEYER and MICHAEL, Circuit Judges, and
Frederick P. STAMP, Jr., Senior United States District
Judge for the Northern District of West Virginia,
sitting by designation.
Vacated and remanded by published opinion. Judge Niemeyer
wrote the opinion, in which Judge Michael and Senior Judge
Stamp joined.
COUNSEL
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, West Virginia, for Appel-
2 UNITED STATES v. RABY
lant. Louise Anna Forbes, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, West Virginia, for Appel-
lee. ON BRIEF: Mary Lou Newberger, Federal Public
Defender, George H. Lancaster, Jr., Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, Charleston, West
Virginia, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
Bernard Raby pleaded guilty to receipt of child pornogra-
phy, in violation of 18 U.S.C. § 2252A(a)(2)(A), and the dis-
trict court sentenced him to 210 months’ imprisonment—a
sentence at the bottom of the properly calculated Sentencing
Guidelines range. In imposing the sentence, the district court
concluded that it was substantially constrained in considering
a sentence outside of the Guidelines range, observing that
because Guidelines sentences "are always reasonable and are
presumed always reasonable," it is "extremely difficult, if not
impossible, for me" to select a sentence outside of the Guide-
lines range on the basis of the "history and characteristics of
the defendant as required by . . . [18 U.S.C. §] 3553(a)" — "I
may not try to fit the sentence to the person in this case."
Because the district court improperly applied a presumption
of reasonableness to a Guidelines sentence and misconceived
its obligations under 18 U.S.C. §§ 3551 and 3553, we vacate
Raby’s sentence and remand for resentencing.
I
In sentencing Raby, the district court conducted a series of
sentencing hearings over a period of ten months, allowing
UNITED STATES v. RABY 3
both parties to present evidence, to respond to evidence, and
to make arguments for or against a variance sentence. In the
end, the government requested a Guidelines sentence, and
Raby requested a downward departure.
The district court was inclined to consider favorably Raby’s
personal circumstances. Raby is a middle-aged man — 42
years old at the time of sentencing — with no prior criminal
record, and he had been regularly employed. His expert wit-
ness testified that Raby could be treated for his appetite for
child pornography and that Raby was a "low-risk" of reof-
fending. During allocution, Raby himself made what the dis-
trict court concluded was a sincere and truthful statement,
promising never to commit the offense again. While the dis-
trict court was inclined to consider these factors favorably in
sentencing Raby, the court concluded that it could not con-
sider them because of the limitations imposed in the Sentenc-
ing Guidelines and the presumption of reasonableness that
attached to Guidelines sentences.
Ultimately, Raby was assigned an adjusted offense level of
40, which was reduced by three levels for his acceptance of
responsibility, resulting in an offense level of 37. When cou-
pled with a criminal history Category I, the Sentencing Guide-
lines called for a sentence within the range of 210 to 262
months’ imprisonment. The district court sentenced Raby to
210 months’ imprisonment.
In conducting the sentencing proceedings, the district court
expressed substantial frustration with what it perceived were
restrictions imposed on it by the Supreme Court and the
Fourth Circuit, particularly in these courts’ conclusions that a
sentence within the Guidelines range may be taken as pre-
sumptively reasonable. The district court believed that it
could hardly impose a reasonable variance sentence, espe-
cially when the Guidelines addressed the very factors that it
thought would justify a variance sentence. Because of the pre-
sumption of reasonableness, the district court also understood
4 UNITED STATES v. RABY
that its discretion to impose an individualized sentence based
on the factors set forth in 18 U.S.C. § 3553(a) was severely
limited. The court stated:
I just can’t believe that’s the law. If that’s the law,
then what’s happening is that the circuit courts are
making these things unconstitutionally mandatory.
We’re retreating completely to the pre-
Booker/Blakely/Apprendi line of cases.
I can’t imagine that the majority of the United States
Supreme Court ever dreamed that we would com-
pletely ignore the 3553(a) factors and the advisory
nature of the guidelines that was so explicitly
required by the majority and go back to this rigidity
that governs the guidelines.
The court continued:
This is absolutely incredible to me that the United
States Supreme Court . . . and . . . the circuit courts
. . . have effectively gone back to exactly the same
procedures that they’ve had under the guidelines.
In fact, they even said in an opinion Judge Niemeyer
wrote not only were the guidelines presumptively
correct, but that a variance from the guidelines was
not ipso facto unreasonable.* And that presumption
seems to me, if I were allowed to make my call on
what’s constitutional, wrong.
After the district court imposed a 210-month term of
imprisonment, it continued to express its frustration:
*United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) ("A sentence
falling outside of the properly calculated Guidelines range is not ipso facto
unreasonable").
UNITED STATES v. RABY 5
After considering the advisory guideline range, I
have concluded that the remedy opinion in Booker
vs. The United States as interpreted by the Court of
Appeals for this circuit has made it extremely diffi-
cult, if not impossible, for me to adequately consider
the history and characteristics of the defendant as
required by the other portions of [18 U.S.C.
§] 3553(a).
During the course of the sentencing hearings, the district
court identified at least four factors that it would have consid-
ered favorably in sentencing Raby. But it appears to have
rejected consideration of those circumstances because the
Sentencing Guidelines instructed the court not to consider
them and a Guidelines sentence was presumed reasonable.
Thus, in response to Raby’s argument that his middle age jus-
tified a favorable treatment, the district court stated:
I may not consider [his age] without going against a
presumption that the guideline is reasonable that tells
me I can’t consider age, that you will be 60 when
you get out of prison. So, . . . I can’t do that.
***
[I]f it is reasonable to say that I may not consider age
and it is presumptively so, I don’t know how any
consideration of age could be anything other than
unreasonable under the interpretation that the Circuit
Court has given me. How could it be? How could it
be? I can’t fathom it.
***
So, someone with a Category I at age 17 is the same
as a Category I, no criminal history, at age 60. So,
the fact you live a law-abiding life and have never
been convicted of a crime is treated exactly the same
6 UNITED STATES v. RABY
when you’re 60 as it is when you’re 20 under the
guidelines. And that’s presumptively reasonable.
In response to Raby’s argument that his history of gainful
employment and contributions to society warranted a less
severe sentence, the court stated:
Mr. Raby has been employed full-time for his adult
life. But the guidelines say it’s reasonable for me not
to pay a bit of attention to that. I am not to pay any
attention to the fact that he has been a contributing
member of society, has worked and earned a living.
I’m not supposed to pay any attention to that
because, as the Government argues, that’s all taken
care of by the guidelines; the guidelines are always
reasonable about that.
So, somebody that doesn’t do a darn thing, lives a
life of sloth and disrepute with regard to their
employment, at least, is treated exactly the same as
someone who works hard all their life. And it’s not
relevant for sentencing if one is to be reasonable,
presumptively reasonable under the guidelines.
In response to the testimony from Raby’s expert, who con-
cluded that Raby was unlikely to reoffend, the district court
stated:
Mental health. The guidelines . . . tell me, and I am
to presume this is reasonable even in the area where
it seems to me that there is a mental health element
to this offense—anybody who thinks it is normal
thinking or normal mental functioning to view child
pornography, to trade and collect it and to be
attracted to it thinks entirely different than I do
because I find it aberrant. I find it aberrant to the
point of disease.
UNITED STATES v. RABY 7
And we had a doctor testify something about that,
and there are other arguments which basically come
down to the fact, yeah, we agree it’s aberrant, but we
can’t fix these people, so lock them up. But I’m not
allowed to consider that if I’m going to stay pre-
sumptively reasonable.
And in response to Raby’s allocution and apology, the
court again felt constrained, stating:
I can’t even, I suppose, take into account in that
regard, or at least the guidelines—I don’t know why
we have the right of allocution. This man made what
I consider to be an extremely sincere statement. He’s
been truthful all along. He admits his sick and per-
verted view of children. But he’s there under oath
today and promises that he would not do it again no
matter how tempted he would be to view child por-
nography.
***
But I may not try to fit the sentence to the person in
this case.
Reflecting more generally on the constraints that it per-
ceived, the district court concluded:
[H]ow does one talk one’s self into a view that a
position contrary to that presumptive reasonableness
is, in fact, reasonable?
***
Whether you call it an appellate standard or my stan-
dard or anything else, if it’s one which doesn’t fit
their standard as they explain it in their opinions,
then it’s unlawful and I shouldn’t impose it.
8 UNITED STATES v. RABY
So, I think this reasonableness business and pre-
sumptive reasonableness business that they put down
is binding on that. I don’t pretend to understand this
argument about the trial judges having a different
obligation.
From the district court’s judgment, imposing a sentence
within the Guidelines range, Raby appealed.
II
Since United States v. Booker, 543 U.S. 220 (2005), the
Sentencing Guidelines are advisory, and sentencing courts
have discretion to sentence defendants within the statutory
range, regardless of whether the sentence falls within the
Guidelines range or without. And the corollary on review of
sentences is that review is conducted under "the deferential
abuse-of-discretion standard of review." Gall v. United States,
128 S. Ct. 586, 598 (2007).
Sentencing discretion, however, is not unlimited, nor
unguided. Congress has created a mandatory structure within
which sentencing is to be conducted. First, every sentence
must be imposed to achieve the four congressionally man-
dated purposes of sentencing codified in 18 U.S.C.
§ 3553(a)(2). See 18 U.S.C. §§ 3551, 3553(a). Section 3551
provides that a defendant found guilty of a federal offense
"shall be sentenced in accordance with the provisions of this
chapter so as to achieve the purposes set forth in subpara-
graphs (A) through (D) of section 3553(a)(2) to the extent that
they are applicable in light of all the circumstances of the
case." Id. § 3551(a) (emphasis added). Similarly, § 3553(a)
requires that a sentencing court "impose a sentence sufficient,
but not greater than necessary, to comply with the [four] pur-
poses set forth in paragraph (2) of this subsection." The four
purposes of sentencing are:
UNITED STATES v. RABY 9
1. To punish the defendant in light of "the serious-
ness of the offense," so as "to promote respect for
the law" and "provide [a] just punishment";
2. To deter both the defendant and others from
"criminal conduct";
3. To incapacitate the defendant and thus "protect
the public from further crimes of the defendant"; and
4. To rehabilitate the defendant with "needed edu-
cational or vocational training, medical care, or other
correctional treatment."
18 U.S.C. § 3553(a)(2); see also United States v. Shortt, 485
F.3d 243, 247-49 (4th Cir. 2007).
Then, in determining the sentence that achieves these four
purposes, the sentencing court must consider the seven factors
identified in 18 U.S.C. § 3553(a)(1)-(7). These include, as rel-
evant to this case, "the nature and circumstances of the
offense and the history and characteristics of the defendant"
and "the kinds of sentence and the sentencing range estab-
lished for . . . the applicable category of offense committed by
the applicable category of defendant" as recommended by the
Sentencing Guidelines. 18 U.S.C. §§ 3553(a)(1),
3553(a)(4)(A).
The procedure that a district court must follow under this
structure is now well established. The district court begins "by
correctly calculating the applicable Guidelines range." Gall,
128 S. Ct. at 596; see also Rita v. United States, 551 U.S. 338,
351 (2007); United States v. Evans, 526 F.3d 155, 160 (4th
Cir. 2008). But consideration of the Guidelines, which is but
one of the seven factors listed in 18 U.S.C. § 3553(a), is only
"the starting point and the initial benchmark." Gall, 128 S. Ct.
at 596; Evans, 526 F.3d at 160-61. The court "then consider[s]
what sentence is appropriate for the individual defendant" in
10 UNITED STATES v. RABY
light of the four purposes of sentencing and the seven factors
for achieving those purposes, "explaining any variance from
[the Guidelines range] with reference to the [§ 3553(a) fac-
tors]." Nelson v. United States, 129 S. Ct. 890, 891-92 (2009).
In selecting a sentence, the district court has substantial dis-
cretion. Yet, in exercising its discretion, the court must give
the parties "an opportunity to argue for whatever sentence
they deem appropriate," Gall, 128 S. Ct. at 596; see also Rita,
551 U.S. at 351, and thereafter "make an individualized
assessment based on the facts presented." Gall, 128 S. Ct. at
597; Evans, 526 F.3d at 161.
In this manner the district court may sentence a defendant
within or outside of the Guidelines range. But this process
does not include according a presumption of reasonableness
to a sentence calculated under the Sentencing Guidelines, and
a district court’s application of a presumption of reasonable-
ness to a Guidelines sentence is error. See Nelson, 129 S. Ct.
at 892; United States v. Smith, 566 F.3d 410, 414 (4th Cir.
2009).
In reviewing a sentence on appeal, the appellate court
applies "the deferential abuse-of-discretion standard" that
calls for determination of whether the district court’s sentence
was reasonable. Gall, 128 S. Ct. at 598; see also Evans, 526
F.3d at 161. The appellate court "first ensure[s] that the dis-
trict court committed no significant procedural error," which
includes:
failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as manda-
tory, failing to consider the § 3553(a) factors, select-
ing 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.
Gall, 128 S. Ct. at 597; see also Evans, 526 F.3d at 161. Then
the appellate court "consider[s] the substantive reasonableness
UNITED STATES v. RABY 11
of the sentence imposed under an abuse-of-discretion standard
. . . , tak[ing] into account the totality of the circumstances,
including the extent of any variance from the Guidelines
range." Gall, 128 S. Ct. at 597. And in reviewing the substan-
tive reasonableness of a district court’s sentence, the appellate
court may presume that a sentence within the properly calcu-
lated Guideline range is reasonable. See Rita, 551 U.S. at 351;
Gall, 128 S. Ct. at 597; Green, 436 F.3d at 457. Explaining
the reason for the presumption, we said:
[T]he Guidelines represent approximately two dec-
ades of close attention to federal sentencing policy.
It would be an oddity, to say the least, if a sentence
imposed pursuant to this congressionally sanctioned
and periodically superintended process was not pre-
sumptively reasonable.
United States v. Johnson, 445 F.3d 339, 342 (4th Cir. 2006)
(citation omitted); see also Rita, 551 U.S. at 347-51.
Although an appellate court may apply a presumption of
reasonableness to a Guidelines sentence, it may not presume
that a non-Guidelines sentence is unreasonable. See Gall, 128
S. Ct. at 597 ("[I]f the sentence is outside the Guidelines
range, the court may not apply a presumption of unreason-
ableness"); Rita, 551 U.S. at 354-55 ("The fact that we permit
courts of appeals to adopt a presumption of reasonableness
does not mean that courts may adopt a presumption of unrea-
sonableness"); Green, 436 F.3d at 457 ("A sentence falling
outside of the properly calculated Guidelines range is not ipso
facto unreasonable").
III
In this case, the district court manifested some confusion
about our statement in Green that even though an appellate
court may apply a presumption of reasonableness to a sen-
tence falling within the Guidelines range, "[a] sentence falling
12 UNITED STATES v. RABY
outside of the properly calculated Guidelines range is not ipso
facto unreasonable." 436 F.3d at 457. Stated in other words,
the mere fact that a sentence falls outside of the Guidelines
range is not a basis for finding it to be unreasonable. The dis-
trict court, however, seemed to believe that we said the oppo-
site. In referring to the Green quotation, the district court
stated:
[T]he circuit courts . . . have effectively gone back
to exactly the same procedures that they’ve had
under the guidelines.
In fact, they even said in an opinion Judge Niemeyer
wrote not only were the guidelines presumptively
correct, but that a variance from the guidelines was
not ipso facto unreasonable. And that presumption
seems to me . . . wrong.
***
Now, if I want to branch out into the area which is
not ipso facto unreasonable, then perhaps I could
consider it. . . . Go outside, it’s not ipso facto unrea-
sonable.
As a result of this misreading of our statement in Green, the
district court seemed to feel constrained to impose a sentence
within the Guidelines range.
In the final analysis, the district court’s comments indicate
that it applied a presumption of reasonableness to a sentence
within the properly calculated advisory Guidelines range. But
as we have noted, "While an appellate court reviewing a sen-
tence may presume that the sentence within a properly calcu-
lated Guidelines range is reasonable, the sentencing court may
not, in sentencing a defendant, rely on this presumption."
Smith, 566 F.3d at 414 (citation omitted); see also Nelson,
129 S. Ct. at 892 ("Our cases do not allow a sentencing court
UNITED STATES v. RABY 13
to presume that a sentence within the applicable Guidelines
range is reasonable").
As a consequence of the district court’s misunderstanding
of the appellate court’s discretion to apply a presumption of
reasonableness to a Guidelines sentence, the district court
mistakenly believed that its discretion to consider the
§ 3553(a) factors and to impose an individualized non-
Guidelines sentence was constrained. The district court stated,
"I have concluded that . . . Booker vs. The United States, as
interpreted by the Court of Appeals for this circuit has made
it extremely difficult, if not impossible, for me to adequately
consider the history and characteristics of the defendant as
required by other portions of 3553(a)." (Emphasis added).
The court noted further, "I may not try to fit the sentence to
the person in this case." Yet, that is precisely what the sen-
tencing court must do, as we have noted. In sentencing a
defendant, the district court must "consider all of the
§ 3553(a) factors" and "make an individualized assessment
based on the facts presented." Gall, 128 S. Ct. at 596-97
(emphasis added); Evans, 526 F.3d at 161.
In light of this record, the government seems to agree that
Raby should be resentenced. At oral argument, the Assistant
U.S. Attorney stated:
COURT: I think [that the district court] would love
to have the benefit of Rita, Gall, and Nelson and
look at this [case] with a fresh approach, and you
probably wouldn’t be opposed to that, as long as the
[district] judge came out with a just sentence, right?
ASSISTANT U.S. ATTORNEY: Absolutely, your
honor. Absolutely.
Of course, we offer no criticism of the district court not fol-
lowing the holdings in Gall, Shortt, Rita, Evans, Nelson, and
14 UNITED STATES v. RABY
Smith, all of which were decided after the defendant’s sen-
tencing hearing.
For the reasons given, we vacate Raby’s sentence and
remand to allow the district court to exercise its discretion in
sentencing Raby, as outlined in this opinion.
VACATED AND REMANDED