United States v. Martin

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

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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

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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

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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

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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).

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 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 ___,

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___ (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.,

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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

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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,

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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.

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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

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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

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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

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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

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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)).

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(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.

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 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

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 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.

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