United States v. Chad Pyles

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 20, 2016 Decided July 7, 2017

No. 14-3069

UNITED STATES OF AMERICA,
APPELLEE

v.

CHAD PYLES,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cr-00006-1)

John A. Briley Jr., appointed by the court, argued the
cause and filed the briefs for appellant.

Jennifer Loeb, Assistant U.S. Attorney, argued the cause
for appellee. On the brief were Elizabeth Trosman and Ann
K.H. Simon, Assistant U.S. Attorneys.

Before: WILKINS, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

Dissenting opinion filed by Senior Circuit Judge
WILLIAMS.
 2
WILKINS, Circuit Judge: Pursuant to the Sentencing
Reform Act of 1984, 18 U.S.C. § 3551 et seq., the District
Court must, at the time of sentencing, “state in open court the
reasons for its imposition of [a] particular sentence.” 18
U.S.C. § 3553(c). This provision mandates that the District
Court offer a “reasoned basis” for its decision and
“consider[]” all non-frivolous mitigation arguments. Rita v.
United Sates, 551 U.S. 338, 356 (2007).

Chad Pyles challenges his 132-month sentence on the
basis that the District Court did not consider each and every
one of his non-frivolous mitigation arguments before
imposing judgment. Specifically, Pyles contends that the
District Court failed to consider that: (1) Pyles’ criminal
conduct stemmed from his history of childhood abuse; and (2)
the child pornography Sentencing Guidelines do not
adequately consider the individual characteristics of each
defendant. Pyles argues that the District Court failed to
respond explicitly to these two arguments on the record, and
that such non-response should be construed as non-
consideration and, therefore, error under Rita and its progeny.

Because Pyles failed to object to the alleged non-
consideration at sentencing, though he had every opportunity,
we review his claim for plain error. FED. R. CRIM. P. 52(b).
As the Supreme Court held in Rita, the District Court is not
required to produce “a full opinion in every case,” and need
not expressly address each and every mitigation argument
advanced by the defendant. 551 U.S. at 356. Rather, so long
as the judge provides a “reasoned basis for exercising his own
legal decisionmaking authority,” we will presume that he or
she adequately considered all arguments and uphold the
sentence if it is otherwise reasonable. Id. Pyles’ claim that the
District Court is required to respond explicitly to every non-
frivolous mitigation argument appears nowhere in our
 3
caselaw; indeed the exact same claim was rejected by the
Supreme Court in Rita. Accordingly, any purported error was
not “so ‘plain’ the trial judge and prosecutor were derelict in
countenancing it, even absent the defendant’s timely
assistance in detecting it,” United States v. Saro, 24 F.3d 283,
286 (D.C. Cir. 1994) (quoting United States v. Frady, 456
U.S. 152, 163 (1982)), and we find that the District Court
committed no “obvious,” or plain, error in this case. United
States v. Olano, 507 U.S. 725, 734 (1993).

I.

The facts of this case mirror the oft-told news story of an
undercover detective who uses an online chat room to thwart
the sexual abuse of minors. In August and September 2013,
Pyles communicated with Timothy Palchak, an undercover
Metropolitan Police Detective (the “Detective”), regarding
Pyles’ sexual interest in minors. During e-mail conversations,
Pyles distributed over the Internet five images of child
pornography, three of which were sadomasochistic in nature.
Later, Pyles and the Detective agreed to meet and have sex
with two underage girls. Pyles traveled interstate to
Washington, D.C. for this purpose, where he was promptly
arrested. A consent search of Pyles’ computer revealed four
additional videos of child pornography. In light of this
evidence, the Government charged Pyles with two counts of
criminal conduct: (1) traveling with intent to engage in illicit
sexual acts in violation of 18 U.S.C. § 2423(b); and (2)
knowingly distributing child pornography in violation of 18
U.S.C. § 2252A(a)(5)(B). 1

1
On February 20, 2014, the parties entered into a plea bargain in
which Pyles’ charge for knowingly distributing child pornography
was reduced to one count of possession of child pornography.
 4
After reviewing the case, the District Court ordered Pyles
to undergo psychological and psychosexual examination to
determine if he was a pedophile and to gauge his propensity
for recidivism. The psychologist diagnosed Pyles with
pedophilia on a provisional basis, severe substance use
disorder, and antisocial personality disorder. In particular, the
psychologist explained that Pyles refused to acknowledge he
had a problem or needed treatment, and downplayed the
severity of his actions. With regard to Pyles’ risk of
recidivism, the psychologist noted that if Pyles participated in
and completed a substance abuse program and a sex offender
treatment program, his likelihood of recidivism was low.
However, a failure to start or complete either of the programs
would result in a moderate to high risk of recidivism.

Following the psychological exam, the District Court
convened a sentencing hearing on September 30, 2014. The
parties jointly recommended a sentence of 87 months
imprisonment. This recommendation, however, was based on
a miscalculation during plea negotiations of Pyles’ offense
level at 28, which corresponds to an incarceration term of 78
to 97 months under the United States Sentencing Guidelines.
When the District Court identified the proper offense level,
the parties agreed that the revised Guidelines range was 108-
to 135-months’ imprisonment. Nonetheless, the parties
continued to advocate for an 87-month term. In particular,
Pyles presented six mitigation arguments, including the two at
issue in this case: (1) the Sentencing Guidelines arbitrarily
increased the base offense levels and enhancements for child
pornography without taking into account individualized
conduct; and (2) as a child, Pyles was subjected to adult
pornography and was sexually abused by older teenagers.

The District Court, however, was unconvinced that a
below-Guidelines sentence should apply. When the parties
 5
recommended 87-months’ imprisonment, the District Court
noted that this would be a downward variance, which was an
“extraordinary request.” J.A. 122. Specifically, the judge
explained that “the variance downward has to be consistent
with the [section] 3553 factors” and, given the facts, he was
“hard-pressed to see how that could possibly be the case
here.” J.A. 115; see 18 U.S.C. § 3553(a).

In particular, the judge cautioned that the seriousness of
Pyles’ behavior should not be taken lightly, especially given
Pyles’ willingness to use the Internet for pornography and
sexual communications, and physically travel to have sexual
intercourse with a minor. The judge also referenced the
sadomasochistic images and videos contained on Pyles’
computer. Further, the judge noted that Pyles’ decision to
plead guilty was only because he had been caught “red-
handed,” and the Government offered him a “huge break” by
reducing his charge from distribution of pornographic
material to possession. The judge also cited the “distressing”
nature of the psychiatric report and, in particular, the fact that
Pyles refused to acknowledge that he has a problem and needs
treatment. The judge concluded that Pyles’ refusal to engage
in sex offender management programs at the prison increased
his risk for recidivism from low to moderate/high.

Moreover, the District Court expressed skepticism
towards Pyles’ Sentencing Guidelines argument. Pyles
claimed that the child pornography guidelines, U.S.S.G. §
2G2.2, arbitrarily increased the base offense levels and
enhancements for defendants regardless of their individual
characteristics and the severity of each crime. However,
contrary to Pyles’ contentions, the District Court did not
reflexively rely on the Guidelines range, but rather evaluated
Pyles’ specific conduct and the risk that he posed to the
community. Indeed, the Government conceded at the hearing
 6
that this was quite a serious case, and that “[w]hen someone
travels, acts on these urges, travels interstate to have sex with
the child, . . . there’s no reason to vary from the guidelines.”
J.A. 117. Thus, the Government noted that while there might
be a legitimate argument that the child pornography
guidelines were too high in some circumstances, the
guidelines for the travel count were “too low.” J.A. 119. This
concession prompted the judge to respond that the Guidelines
argument supported, at best, a sentence of 108 months – the
bottom of the applicable Guidelines range – but that it was
“not an argument” that would support going below the
Guidelines range to 87 months. Later, the judge added that the
criticisms of the child pornography guidelines were weak in
this case where Pyles’ offense involved images of
prepubescent children, sadomasochistic images, and
distribution of images rather than mere possession.
Accordingly, the judge imposed a sentence of 132-months
imprisonment.

Pyles appealed the District Court’s sentence on October
15, 2014. His primary argument on appeal is that the District
Court provided no explanation regarding its rejection of his
mitigation arguments. Rather, Pyles contends, the District
Court improperly focused on the seriousness of the offense
and the need for punishment. We have jurisdiction to review
this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).

II.

Our review raises two interrelated questions. First, did
Pyles sufficiently preserve his claim of error to trigger abuse
of discretion review, or is our analysis limited to plain error?
Unsurprisingly, Pyles argues that the correct standard is abuse
of discretion, Appellant Br. 7-8, while the Government
 7
contends that this Court’s review is restricted to plain error,
Appellee Br. 18. As explained below, we find that the
appropriate standard is plain error. Second, was there plain
error? Because we find that Pyles has not shown that it was an
obvious error for the District Court to fail to expressly state
that all of Pyles’ mitigation arguments were appropriately
considered but nonetheless rejected, we find no plain error.

A.

The correct standard of review in this case hinges on
whether Pyles timely objected to the District Court’s
sentencing ruling. Where a sentencing violation has been
properly preserved, this Court reviews the sentencing
determination for abuse of discretion. See United States v.
Locke, 664 F.3d 353, 356 (D.C. Cir. 2011). A defendant’s
failure to timely raise a procedural violation at sentencing
results in appellate review for plain error. United States v.
Bigley, 786 F.3d 11, 13 (D.C. Cir. 2015). Pursuant to the plain
error standard, Pyles must demonstrate that the District Court
committed an “obvious” or “clear” error that affects his
substantial rights. Olano, 507 U.S. at 734. An error affects a
defendant’s substantial rights if it is prejudicial, United States
v. Simpson, 430 F.3d 1177, 1183 (D.C. Cir. 2005), and
seriously impacts “the fairness, integrity, or public reputation
of judicial proceedings,” Locke, 664 F.3d at 357.

In the context of an asserted procedural error for failure
to consider a non-frivolous mitigation argument, our
precedent requires that the defendant state his objection on
the record at sentencing. In Locke, this Court held that
because the defendant “did not challenge the adequacy of the
district court’s statement of reasons below, we review her
claim for plain error.” 664 F.3d at 357. It was not enough for
the defendant to simply state her non-frivolous mitigation
 8
argument on the record; rather, when the District Court
imposed its sentence and did not reference this argument, the
defendant had an affirmative duty to object if she believed
that the argument had not been given fair consideration.
Because the District Court gave the defendant “ample
opportunity to object” when it asked the parties if they “know
of any reason other than reasons already stated and argued
why the sentence should not be imposed,” and defense
counsel simply replied “[n]othing else, [y]our Honor,” plain
error review was appropriate. Id. (alterations in original). We
have consistently followed that approach. See United States v.
Hunter, 809 F.3d 677, 683 (D.C. Cir. 2016) (“Locke describes
the best procedure for district judges to follow—after
sentencing the judge should ask if there are any objections to
the sentence imposed not already on the record.”); United
States v. Mack, 841 F.3d 514, 518 (D.C. Cir. 2016) (applying
plain error review where defendant asserted on appeal that
District Court failed to consider his sentencing manipulation
argument, but no objection was made even though “the trial
judge asked appellant’s counsel on two occasions whether
there was any reason why the court should not impose the
sentence on the terms indicated”).

The circumstances of this appeal mirror those of Locke,
Hunter, and Mack. After pronouncing the sentence, the
District Court asked defense counsel if he had any questions,
and counsel requested that the court recommend a prison
placement for Pyles. The District Court agreed, and then
asked whether there was “anything else,” prompting defense
counsel to request that the court recommend substance abuse
treatment during incarceration. The District Court agreed to
recommend that Pyles be evaluated for such treatment and
again asked “anything else?” and defense counsel responded
“no.” J.A. 148-50. Thus, despite three explicit invitations to
do so, Pyles did not challenge the adequacy of the District
 9
Court’s consideration of his mitigation arguments or the
District Court’s explanation of its sentence.

Citing United States v. Tate, 630 F.3d 194 (D.C. Cir.
2011), our dissenting colleague contends that we are violating
precedent and that there is an “intra-circuit conflict” in our
cases involving the preservation requirements for alleged
procedural error during sentencing. Dissent Op. 4. Not so.
Tate was a procedural error case, but it was not a “failure to
consider” procedural error case. In Tate, the defendant faulted
the District Court for mistakenly believing that the 2007
amendment to the crack guideline had reduced the crack-to-
powder disparity from 100 to 1 to a disparity of around 20 to
1, when, in actuality, the 2007 amendment brought the
disparity to 70 to 1 as applied to Tate’s offense level. 630
F.3d at 197. The alleged error in Tate was that the District
Court incorrectly considered the sentencing mitigation
argument, not that the court had failed to consider the
argument at all. As we have previously explained, “unnoticed
errors of the sort characterized by the Supreme Court in Gall
as procedural ‘such as . . . failing to consider the § 3553(a)
factors’ . . . would normally be reviewed for plain error.”
United States v. Russell, 600 F.3d 631, 633–34 (D.C. Cir.
2010) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).

The distinction is important. Where either the defense or
prosecution believe that the trial court has overlooked an
argument in favor of mitigating or enhancing the sentence, we
should “induce the timely raising of claims and objections,
which gives the district court the opportunity to consider and
resolve them,” and thereby “correct or avoid the mistake so
that it cannot possibly affect the ultimate outcome.” Puckett
v. United States, 556 U.S. 129, 134 (2009). Requiring a
contemporaneous objection to a failure of consideration “is
neither pointless nor ‘formulaic,’” Hunter, 809 F.3d at 683,
 10
because “a clear objection can enable a trial court to correct
possible error in short order and without the need for an
appeal,” id. (quoting United States v. Bennett, 698 F.3d 194,
199 (4th Cir. 2012)).

Therefore, in accordance with our precedent, because
appellant raised no objection to his sentence despite three
opportunities to do so, we review the asserted procedural
violation in this case for plain error. Hunter, 809 F.3d at 683
(using plain error review when appellants raised no objection
even though District Court asked them if there were “any
additional questions” after imposing sentence).

B.

Having discerned the standard of review, we must next
determine whether the District Court committed plain error by
failing to explain its rejection of each mitigation argument on
the record. We find that it did not.

To give rise to plain error, the error must have been
“obvious,” meaning that “the error is clear under current
law.” Olano, 507 U.S. at 734; see also Henderson v. United
States, 133 S. Ct. 1121, 1124-25 (2013) (“[A]s long as the
error was plain as of . . . the time of appellate review . . . the
error is ‘plain’ within the meaning of the Rule.”). Stated
differently, “[a]bsent controlling precedent on the issue or
some other ‘absolutely clear’ legal norm, the district court
committed no plain error.” United States v. Nwoye, 663 F.3d
460, 466 (D.C. Cir. 2011) (quoting In re Sealed Case, 573
F.3d 844, 851 (D.C. Cir. 2009)).

The holdings of the Supreme Court and this Court state
that when presented with non-frivolous arguments for
mitigation, the District Court must consider those arguments
before imposing the sentence. Bigley, 786 F.3d at 12, 14. In
 11
addition to considering any mitigation arguments, the District
Court must provide a “reasoned basis” when announcing its
sentencing decision. Locke, 664 F.3d at 357. These standards,
however, do not require the District Court to individually and
expressly address every non-frivolous argument advanced by
a defendant on the record. Id. Rather, “so long as the judge
provides a ‘reasoned basis for exercising his own legal
decisionmaking authority,’ we generally presume that he
adequately considered the arguments and will uphold the
sentence if it is otherwise reasonable.” Id. at 358 (quoting
Rita, 551 U.S. at 356). Where the record makes clear that the
judge considered and evaluated a defendant’s arguments, the
presumption of procedural reasonableness will be upheld. Id.

In Locke, the defendant similarly challenged his sentence
on the basis that the District Court failed to consider two
mitigation arguments. Id. at 354. The record in Locke,
however, clearly evidenced an extended colloquy between the
District Court and Locke’s counsel regarding the defendant’s
refusal to cooperate with the Government. Id. at 358.
Following this discussion, the District Court offered a well-
reasoned basis for its decision. In particular, “[a]fter outlining
the seriousness of the offense, the length of the conspiracy,
the ‘significant role’ played by Locke and [the District
Court’s] doubts about her remorse, [the judge] concluded that
a ‘substantial period of incarceration’ was warranted.” Id.
This Court found no plain error even though the judge did not
address every mitigation argument offered by the defendant.

The holding of Locke flowed from the guidance of Rita,
where the Supreme Court refused to require district court
judges to write full opinions for every sentencing decision.
551 U.S. at 356. The Supreme Court stated that the length and
detail of a judge’s sentencing explanation, along with his
decision to respond to or ignore certain arguments should be
 12
left “to the judge’s own professional judgment.” Id. A
sentencing judge need only set forth enough facts and
analysis “to satisfy the appellate court that he has considered
the parties’ arguments and has a reasoned basis for exercising
his own legal decisionmaking authority.” Id. If a judge is
merely applying the Sentencing Guidelines to a particular
case, his actions do not require a lengthy explanation. Id.
Therefore, where a judge listens to arguments for mitigation,
considers the supporting evidence, and finds that the
circumstances do not warrant a below-Guidelines sentence,
then “context and the record make clear” that the judge
considered each argument. Id. at 358-59. Citing Rita and
Locke, we recently explained that while non-frivolous
mitigation arguments must always be considered, we “do not
require the court to expressly address every argument
advanced by a defendant” when imposing a sentence. United
States v. Borda, 848 F.3d 1044, 1071 (D.C. Cir. 2017),
petition for cert. filed, No. 16-1396 (May 23, 2017).

The fact that we are reviewing a within-Guidelines
sentence also impacts the analysis. In United States v.
Brinson-Scott, we cited Rita for the proposition that “[w]here,
as here, the district judge pronounces a within-Guidelines
sentence . . . little explanation is required.” 714 F.3d 616, 625
(D.C. Cir. 2013); see also Rita, 551 U.S. at 356 (“[W]hen a
judge decides simply to apply the Guidelines to a particular
case, doing so will not necessarily require lengthy
explanation.”). Comparably, in United States v. Akhigbe, we
noted that, “[i]n many cases, such as where the parties have
presented only ‘straightforward, conceptually simple
arguments’ and the district court concludes a Guidelines
sentence is appropriate, a fairly brief recitation of reasons will
satisfy the court’s procedural obligations.” 642 F.3d 1078,
1087 (D.C. Cir. 2011) (quoting Rita, 551 U.S. at 356). Other
circuits have construed Rita similarly, noting that “[l]ess
 13
explanation is typically needed when a district court sentences
within an advisory guidelines range.” United States v. Harris,
567 F.3d 846, 854 (7th Cir. 2009).

The dissent contends that Rita requires that the District
Court must not only “consider” all non-frivolous mitigation
arguments, but also “acknowledge” or “respond” to every
non-frivolous argument on the record. Dissent Op. at 10-11.
But this supposed requirement for an explicit response
appears nowhere in the Supreme Court’s opinion, even
though the Petitioner in Rita argued that “district courts must
articulate their consideration of all factors relevant to
judgment,” and that it was error to “impos[e] sentence
without articulating, on the record, its consideration of the
factors enumerated in 18 U.S.C. § 3553(a), as plainly required
by [18 U.S.C.] § 3553(c).” Brief for Pet’r at 5, 42-43, Rita v.
United States, 551 U.S. 338 (2007) (No. 06-5754). The
Supreme Court declined the Petitioner’s invitation to go this
far, and instead required only that the district courts consider
all non-frivolous mitigation arguments and articulate merely a
“reasoned basis” for the sentence. Rita, 551 U.S. at 356.

The dissent ignores the holding as pronounced in Rita,
and further ignores the fact that the Supreme Court refused
Petitioner’s demand that the district court “articulate” all
factors considered. Instead, the dissent reads between the
lines to assert that when the Supreme Court used the word
“consider,” it really meant “acknowledge and consider.” But
as explained above, we have not described Rita as requiring
such an express acknowledgement in every single case, and
notwithstanding the dissent’s efforts to manufacture a circuit
split, neither have our sister circuits. Indeed, the First Circuit
has held that where mitigating arguments were “thoroughly
discussed in the presentence report; that the district court did
not explicitly mention them during the sentencing hearing
 14
suggests they were unconvincing, not ignored.” United States
v. Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012). Thus,
to the extent that out-of-circuit cases are even relevant in the
plain error context, they fail to establish a “clear” and
“obvious” uniform rule that district judges must always
acknowledge every non-frivolous mitigation argument during
sentencing. See, e.g., id. (“Though we require consideration
of the § 3553(a) factors, we do not require an express
weighing of mitigating and aggravating factors or that each
factor be individually mentioned.”); United States v. Chiolo,
643 F.3d 177, 182 (6th Cir. 2011) (“Chiolo claims that his
sentence was procedurally unreasonable because the district
court did not address several of his non-frivolous arguments .
. . . While it is true that the court did not expressly address
these arguments, Chiolo demands a degree of formalism
which the law does not require.”); United States v. Paige, 611
F.3d 397, 398 (7th Cir. 2010) (“Even if the judge did not
adequately address these arguments, we regularly affirm
sentences where the district judge does not explicitly mention
each mitigation argument raised by the defendant.”); United
States v. Gasaway, 684 F.3d 804, 807 (8th Cir. 2012)
(“Gasaway is correct that the district court did not . . . directly
address Gasaway’s difficult life or alcohol problems.
However, the court stated it had considered all of the
sentencing factors, and it is clear from the record that the
court was on notice of Gasaway’s mitigating life
circumstances. In sentencing a defendant, ‘it is often enough
that a judge only reference some of the factors.’”) (quoting
United States v. McGlothen, 556 F.3d 698, 702 (8th Cir.
2009)); United States v. Perez-Perez, 512 F.3d 514, 516 (9th
Cir. 2008) (“[T]he sentencing judge expressly based the
within-guidelines sentence on the defendant’s extensive
criminal history and the need for deterrence, while apparently
considering—without explicit reference—Perez-Perez’s
mitigation arguments. That the defense’s arguments were
 15
considered is clear from the transcript of the sentencing
proceeding, during which the district court actively
questioned and engaged the defense. This is sufficient under
the Supreme Court’s decision in Rita and this Court’s earlier
authority.”); United States v. Amedeo, 487 F.3d 823, 833
(11th Cir. 2007) (“[A]lthough the district court’s sentencing
order made no mention of evidence that arguably mitigated in
Amedeo’s favor under § 3553(a), we cannot say that the
court’s failure to discuss this ‘mitigating’ evidence means that
the court erroneously ‘ignored’ or failed to consider this
evidence in determining Amedeo’s sentence.”).

Thus, the precedent regarding mitigation arguments
follows the precedent relating to the § 3553(a) factors – the
District Court must consider the argument, but that does not
equate to a mandate that such consideration must be spelled
out on the record. See Simpson, 430 F.3d at 1186 (“It is true
that the district court did not specifically refer to each factor
listed in § 3553(a). But we have not required courts to do
so.”); United States v. Warren, 700 F.3d 528, 533 (D.C. Cir.
2012) (rejecting the argument “that the court erred by failing
to explicitly refer to each section 3553(a) factor”). “As this
Court has said many times, there is no requirement that
sentencing courts expressly list or discuss every Section
3553(a) factor at the sentencing hearing.” United States v.
Knight, 824 F.3d 1105, 1110 (D.C. Cir. 2016). Indeed, we
have upheld a sentence even where “the district court’s
explanation did not invoke any of the section 3553(a) factors
by name. But we do not require that it do so. Sentencing, after
all, is not a game of Simon Says.” Brinson-Scott, 714 F.3d at
626 (emphasis added). The same is true for mitigation
arguments, and the dissent is mistaken to contend otherwise.

Applying these principles to the present appeal, we
cannot say that the District Court plainly erred by not
 16
explicitly addressing each of Pyles’ mitigation arguments. A
trial judge may hear, understand, and weigh a defendant’s
non-frivolous argument even though the judge does not fully
and explicitly address that precise argument on the record.
Context matters. If a trial judge states a reasonable decision in
support of sentencing and that decision obviously forecloses
an objection raised by the defendant, we need to be very
cautious before concluding that the judge has failed to give
due consideration to the non-frivolous objection. The
dissent’s categorical rejection of implicit consideration is
misguided. In Gall, the Supreme Court rejected the contention
that the district court failed to consider the need to avoid
unwarranted sentencing disparities, where the district judge
did not explicitly weigh this factor when he imposed a
probationary sentence even though the Guidelines range was
30-37 months imprisonment. 552 U.S. at 52-56. The Court
found that the factor was implicitly considered because
“avoidance of unwarranted disparities was clearly considered
by the Sentencing Commission when setting the Guidelines
ranges. Since the District Judge correctly calculated and
carefully reviewed the Guidelines range, he necessarily gave
significant weight and consideration to the need to avoid
unwarranted disparities.” Id. at 54.

In this case, several factors from the record and
surrounding context – in addition to the detailed explanation
for the sentence described above – make it clear that the judge
considered and implicitly rejected Pyles’ contentions before
rendering a within-Guidelines sentence based on the judge’s
reasoned decisionmaking. The precedent of the Supreme
Court and our Court requires nothing more.

First, the judge explicitly stated on the record that he
spent a “considerable amount of time” reviewing the
materials in this case, including Pyles’ sentencing
 17
memorandum. Indeed, based upon this review, the judge felt
that an important piece of information was missing, and
ordered Pyles to undergo a psychiatric evaluation. The judge
then convened a hearing on September 9, 2014, to review the
results of the evaluation, and allowed the parties to submit
supplemental briefing. The judge further delayed the
sentencing hearing to get his glasses repaired so he could read
everything. During the hearing, the judge referred to the
written materials several times, and even read portions of the
psychological report to the prosecutor and defense counsel to
get their responses. Given this record, it would be entirely
unfair to conclude that the District Court did not read and
consider the contentions made in the written submissions,
including the various arguments in favor of mitigation. See
United States v. Carty, 520 F.3d 985, 995-96 (9th Cir. 2008)
(en banc) (rejecting the argument that “because the district
court did not affirmatively state that it considered the §
3553(a) factors, we should assume that it did not,” since “the
judge stated that he reviewed the papers; the papers discussed
the applicability of § 3553(a) factors; therefore, we take it that
the judge considered the relevant factors”).

Second, the district judge interacted frequently with the
prosecutor, defense counsel, and Pyles during each of their
allocutions, which demonstrates that he was listening to what
they were saying. The dissent suggests that we should
conclude that the judge did not consider Pyles’ argument for a
variance because he expressed skepticism during the
prosecutor’s allocution and before hearing from the defense,
but there is no valid reason to presume that a judge who
expresses a tentative view of the sentence refused to consider
all arguments made thereafter. It has long been established
that “[a] judge . . . may make a preliminary determination
about the sentence in his own mind before hearing the
defendant’s allocution.” United States v. Mata-Grullon, 887
 18
F.2d 23, 25 (1st Cir. 1989) (per curiam); see also United
States v. Margiotti, 85 F.3d 100, 103 (2d Cir. 1996); United
States v. Wolfe, 71 F.3d 611, 614-15 (6th Cir. 1995); United
States v. Laverne, 963 F.2d 235, 237 (9th Cir. 1992). Such a
presumption of non-consideration would be entirely unfair
here, where the district judge acknowledged when stating his
tentative views that defense counsel had not yet made his
argument and he did not want to “steal [counsel’s] thunder.”
J.A. 119. Furthermore, we have never held that a District
Court’s response to a non-frivolous mitigation argument must
be raised solely with defense counsel. If the Government and
defendant present similar arguments for mitigation, the
District Court’s response to either party will be sufficient to
show it considered the argument. The fact that the District
Court addressed this argument with the Government’s lawyer
does not expunge the consideration of the issue.

Third, the district judge explicitly sought to hear Pyles’
mitigation arguments, as he asked defense counsel to “give
me your best argument for [a] downward variance” at the
beginning of his presentation. J.A. 122. The District Court
allowed defense counsel and Mr. Pyles to make lengthy
statements; indeed, the sentencing hearing lasted nearly an
hour, longer than most of our oral arguments. Unlike the
dissent, we are unwilling to find that the district judge failed
to consider the precise arguments that he listened to for a very
long time and expressly asked to hear.

Fourth, context makes clear why the District Court
rejected Pyles’ Sentencing Guidelines argument. Given that
both Pyles and the Government raised issues with the
Sentencing Guidelines in their memoranda, the District Court
found it pertinent to discuss this concern at the beginning of
the hearing. The Government acknowledged that “[t]he
conduct in this case is very, very serious,” and explained that
 19
“you have child pornography on one side, where there’s all
kind of argument on one side what the guidelines should be.
But you have travel on the other side, where there, frankly, is
no argument.” J.A. 117. The District Court responded by
explaining that Pyles had already received a huge break in
how he was charged because simple possession of
pornographic material does not carry a mandatory minimum
sentence. After further discussion, the Government noted that
“[s]ometimes the Guidelines are possibly much higher than
the conduct or much more serious than the conduct, and
sometimes they’re lower. Frankly, in the case of a travel only
. . . it’s too low. Sometimes when it’s involving child
pornography only, it’s too high.” J.A. 119. The judge
explained that this argument could not result in a downward
variance in this case. Later, the District Court responded to
defense counsel’s arguments about the relative seriousness of
the travel count versus the child pornography count and their
respective Guidelines levels, stating that the Guidelines
enhancement for sadomasochistic images was appropriate and
rejecting the argument that the child pornography Guideline
range should be less than the Guideline range for the travel
count. Finally, after hearing from both defense counsel and
Pyles, the judge stated “obscene materials are not all the
same, some are worse than others, and that’s why we have
points in this patchwork quilt of calculations that the
guidelines engage in,” and announced his conclusion that a
sentence at the upper range of the Guidelines was warranted
because the images in this case involved prepubescent
children, sadomasochistic images, and were not just
possessed, but also distributed, by Pyles. J.A. 142-43. Thus,
it is quite evident that the District Court read, listened to, and
considered the mitigation arguments based upon the alleged
excessive enhancements of the child pornography Guidelines.
 20
Fifth, with regard to the District Court’s alleged failure to
consider Pyles’ history of sexual abuse, we note that Pyles’
childhood sexual abuse was discussed in the presentence
report, Pyles’ sentencing memorandum, and the psychological
evaluation, all of which the District Court read. Indeed, it
was only after reviewing the presentence report and
sentencing memoranda that the District Court, on its own
volition, ordered Pyles to undergo psychological testing. The
District Court then permitted additional briefing by the parties
to address the findings in the psychological report. It would
be puzzling to hold that the District Court did not consider the
history of sexual abuse described in a report that the judge
specifically requested. Rather, it is both fair and reasonable
to presume that a judge read and considered information that
he specifically sought out. The opposite presumption,
embraced by the dissent, seems much more dubious.

The District Court’s discussion of Pyles’ drug abuse is
also relevant on this point. Pyles blamed his pedophilia on
his drug usage and, in turn, he blamed his drug usage on his
sexual abuse as a child. Thus, Pyles’ drug use was
inextricably intertwined with his history of sexual abuse. The
District Court directly acknowledged Pyles’ drug usage on the
record, so it is hard to conceive how the District Court could
have considered the drug abuse without also considering the
mitigating factor that supposedly begat the drug abuse. While
an explicit response to the sexual abuse argument would have
been advisable, the context shows that the argument was
considered.

Sixth, in addition to what was said during the formal
pronouncement of sentence, the District Court made several
statements throughout the sentencing hearing that explained
its reasoning. The District Court took issue with Pyles’
minimization of his crimes, the severity of the conduct,
 21
including interstate travel and possession of sadomasochistic
images, and Pyles’ unwillingness to participate in sex
offender treatment. Specifically, the judge explained that
Pyles’ risk of recidivism increased to moderate/high because
of his refusal to undergo treatment, and that Pyles simply
blamed drug usage for his pedophilia. The District Court also
stressed its obligation to punish and deter Pyles and others
from committing this crime in the future, along with the need
to protect the community. The judge’s decision was further
based on the fact that Pyles already received a “huge break”
because he pled guilty to simple possession of pornography,
not distribution, and that his acceptance of guilt was only
because he had been caught “red-handed” and had no
legitimate defense. The District Court’s explanation of these
factors at the sentencing hearing provides a well-reasoned
basis for rejecting the arguments for a downward variance.
The judge’s reasoning suggests that he considered all
appropriate circumstances and imposed a sentence that would
achieve the goals of individual and general deterrence,
adequate punishment, and protection of the community.

In summary, our precedent requires the District Court to
consider each and every non-frivolous argument for
mitigation, but does not require the judge to address expressly
each argument on the record when pronouncing the sentence.
Our review, particularly in the plain error context, is for
“significant procedural error,” Gall, 552 U.S. at 51, rather
than for fastidious compliance with protocol. Express
acknowledgment of mitigation arguments is of course helpful
and encouraged, but it is not required in every instance. The
record and context of this case make clear that the judge did
not violate any of the settled standards set forth in Rita and
Locke when he imposed a within-Guidelines sentence, and
there is enough in the record to allow for meaningful
 22
appellate review. Accordingly, we find no plain error. The
judgment is affirmed.

So ordered.
 WILLIAMS, Senior Circuit Judge, dissenting: My
colleagues recognize that a sentencing court “must consider”
any “non-frivolous arguments for mitigation” that a defendant
presents. Maj. Op. at 10 (citing United States v. Bigley, 786
F.3d 11, 12, 14 (D.C. Cir. 2015)). But confronted with a record
that fails to show such consideration, the majority is content
with evidence that the judge spoke reasonably about the issues
he did address. This accommodating test effectively eliminates
the requirement of considering nonfrivolous arguments.
Because the record offers no hint that the district court even
listened to—let alone considered—two important arguments
before it, I respectfully dissent.

The record shows the district court batting down several
arguments for leniency, but these were government arguments,
not Pyles’s. The prosecutor urged the district court to sentence
below the bottom of the corrected Guidelines range (108-135
months). Sentencing Tr. at 4-5. (The plea agreement had stated
a range of 78-97 months, having assumed the wrong criminal
history category and left out a distribution enhancement.) The
government joined Pyles in suggesting an intermediate range
of 87-108 months, based on correcting the criminal history
category but not applying the enhancement. See id. at 3-5, 15;
Gov’t Sentencing Mem. at 2-3 (“Gov’t Mem.”). Both sides
requested a sentence at the very bottom of the intermediate
range—87 months. See Sentencing Tr. at 4-5, 15; see also
Gov’t Mem. at 2-3. Citing his own experience from having
“handled these cases [] exclusively for a number of years,” the
prosecutor enumerated reasons for leniency: the mistake in the
agreement; “the relatively small amount of child pornography;”
and the immediate cooperation on Pyles’s part. Sentencing Tr.
at 4-6, 8. Given these mitigating circumstances, the prosecutor
urged that the intermediate range of 87-108 was “where the
guidelines are most appropriate.” Id. at 9.
 2

The district court countered the prosecutor’s points. Id. at
4-10. We may assume that its dispatch of them was adequate.
But that tells us nothing about the two separate arguments for a
variance raised by Pyles’s counsel. As to these, the court
uttered not the slightest acknowledgement. First, Pyles had
been sexually abused and exposed to pornography as a child;
counsel presented these events as a key source of his mental
health problems, drug addiction, and criminal behavior,
culminating in the current charges. See id. at 20-21;
Defendant’s Sentencing Mem. at 14 (“Defendant’s Mem.”).
Second, as the Sentencing Commission had acknowledged, the
child pornography Guidelines are rife with enhancements for
circumstances that almost invariably accompany a child
pornography conviction, including Pyles’s (e.g., use of a
computer, sadomasochistic images), thereby inflating the range
and eliding meaningful distinctions of culpability. See
Sentencing Tr. at 13-15, 19-20, 25; see also U.S. Sentencing
Commission, Federal Child Pornography Offenses iii & n.14
(2012) (“Commission Report”); id. at 313 (“[E]nhancements
that were intended to apply to only certain offenders who
committed aggravated child pornography offenses are now
being applied routinely to most offenders.”).

Whenever defense counsel raised these contentions the
district court moved on without discussing them or even
signaling recognition; counsel would circle back to his variance
request, but never succeeded in engaging the court’s focus.
Before counsel had even finished his opening argument about
the Guidelines’ inadequacies, see Sentencing Tr. at 13-15, the
court interrupted, “Hold on,” and launched into discussions of
the relative seriousness of Pyles’s two charges, of public safety,
and of why probation (which no party had requested) was
inappropriate, id. at 15-18. Counsel attempted to reorient the
discussion, explaining how even the Sentencing Commission
was “in doubt” over U.S.S.G. § 2G2.2 and how Pyles deserved
a variance based on the traumatic abuse he had suffered. Id. at
 3

19-21. Counsel then turned to the skepticism about Pyles’s
possible rehabilitation that the court had expressed in colloquy
with the government; he urged that with therapy, Pyles could
“succe[ed].” Id. at 21-22. Instead of responding directly to
Pyles’s two main arguments, the court launched into a denial of
the possibility of therapy—there was, said the court, “no basis
. . . to believe that [Pyles] would engage in” sex offender
treatment, id. at 22—a denial that was, as we’ll soon see, a
radical oversimplification of the record. Counsel responded to
the court’s concern and then returned to the variance request,
which he bolstered with the Sentencing Commission’s own
statements and relevant Supreme Court precedents. Id. at 23-
26. Signaling that it thought counsel had been talking for long
enough, the court asked Pyles if he wished to speak. Id. at 26.
The court ultimately sentenced Pyles to 132 months (eleven
years), three months short of the corrected Guidelines
maximum.

The record, including the district court’s oblique and in
part mistaken comments, reflects no consideration of either of
counsel’s “‘nonfrivolous reasons’ . . . for an alternative
sentence”—consideration required by our and the Supreme
Court’s cases. See United States v. Locke, 664 F.3d 353, 357
(D.C. Cir. 2011) (quoting Rita v. United States, 551 U.S. 338,
356-57 (2007)). Until now, we have enforced this procedural
requirement without hesitation. See Bigley, 786 F.3d at 14
(reversing below-Guidelines sentence for failure to consider
nonfrivolous argument); see also United States v. McKeever,
824 F.3d 1113, 1125-26 (D.C. Cir. 2016) (remanding within-
Guidelines sentence for failure to consider nonfrivolous
argument). In dispensing with this requirement, or at best
skating over its violation, the panel breaks from precedent.

Our disagreement begins with the standard of review.
Pyles’s counsel raised his requests for leniency multiple times
despite the court’s apparent unwillingness to hear them. But
 4

because counsel never objected that his repeated arguments had
gone unheeded, my colleagues believe the error must be viewed
through the plain error lens rather than abuse of discretion.
Their decision embraces one side of an intra-circuit conflict
while obscuring the other. They rely on Locke, where we said
an objection was required to preserve a claim that nonfrivolous
arguments went unconsidered. 664 F.3d at 356-57; accord
United States v. Mack, 841 F.3d 514, 525 (D.C. Cir. 2016). But
we had earlier held in indistinguishable circumstances that a
defendant need only “inform the [district] court . . . of the ruling
he wants the district court to make and the ground for so doing.”
United States v. Tate, 630 F.3d 194, 197 (D.C. Cir. 2011)
(quoting United States v. Rashad, 396 F.3d 398, 401 (D.C. Cir.
2005)); see also id. at 198 (“Having stated the facts and the law
regarding the [sentencing argument] and having requested that
the district court exercise its discretion . . . , counsel preserved
Tate’s . . . claims of error and counsel was not obligated to
object . . . .”). Judges in the Third Circuit have rightly
described our precedents on this issue as “internally
inconsistent.” United States v. Flores-Mejia, 759 F.3d 253, 260
n.1 (3d Cir. 2014) (en banc) (Greenaway, Smith, Shwartz &
Sloviter, JJ., dissenting).

My colleagues distinguish Tate with the observation that
one of the claimed procedural errors involved a misstatement
rather than an omission. Maj. Op. at 9. This fails twice. First,
my colleagues offer no reason to find the difference meaningful
for this issue. Second, Tate applied its no-need-to-object rule
to another claimed error almost identical to the one in dispute
here: that the sentencing judge “fail[ed] to appreciate” an
argument to vary downward based on policy disagreement with
the Guidelines. Tate, 630 F.3d at 199-200. The government
asserted the necessity of a post-sentence objection, but we flatly
rejected the idea. Id. at 197-98. We applied abuse of discretion
review and affirmed the sentence because the judge had in fact
 5

acknowledged the policy problems in the Guidelines and
“recognized that it had discretion to vary.” Id. at 200.

Further, as applied in these circumstances, where counsel
has repeatedly had his points brushed off, he might well feel
that he’d look like an idiot, or be seen as trying to make the
court look like an idiot, if he larded the record with the obvious
point that he wished his arguments to be evaluated. See United
States v. Lynn, 592 F.3d 572, 578-79 & n.3 (4th Cir. 2010)
(reasoning that it would be a “drain on district-court time” to
require post-sentence procedural objections and that “[b]y
drawing arguments from § 3553 for a sentence different than
the one ultimately imposed, an aggrieved party sufficiently . . .
preserves its claim”); see also United States v. Bonilla, 463 F.3d
1176, 1181 (11th Cir. 2006) (“The question of whether a
district court” adequately explained its sentence “is reviewed
de novo, even if the defendant did not object below”).

But of my disagreements with the majority, this one is the
least consequential for Pyles: I would find error under even the
more demanding standard; they, apparently, would find none
even under the more lenient. Compare Maj. Op. at 21.

To establish plain error, a defendant must show (besides,
of course, error): that the error was plain, which in its role as
one of the “plain error” requirements “simply means clear,”
United States v. Terrell, 696 F.3d 1257, 1260 (D.C. Cir. 2012)
(internal quotation marks omitted); that it “affect[ed]
substantial rights,” Mack, 841 F.3d at 522; and that it “seriously
affect[ed] the fairness, integrity, or public reputation of judicial
proceedings,” id.

An error is clear “if it contradicts circuit or Supreme Court
precedent,” In re Sealed Case, 573 F.3d 844, 851 (D.C. Cir.
2009), as of “the time of appellate review,” United States v.
Bostick, 791 F.3d 127, 149 (D.C. Cir. 2015) (citing Henderson
 6

v. United States, 133 S. Ct. 1121, 1129 (2013)). And the
majority recognizes that it has been clear since shortly after
United States v. Booker, 543 U.S. 220 (2005), that a district
court “must consider” any “nonfrivolous argument for a
sentence below the relevant guideline range.” Bigley, 786 F.3d
at 14; see also Rita, 551 U.S. at 356-357; Locke, 664 F.3d at
357. Straddling both the “error” and the “clear” elements, the
panel finds no “obvious” error. Maj. Op. at 7, 10.

In fact Pyles’s two reasons for variance were more than
compelling enough to qualify for the modest protections
identified in Rita, Locke, and Bigley—a point I do not take my
colleagues to dispute. Each argument was appropriately rooted
in the sentencing factors of 18 U.S.C. § 3553(a), each was
relevant to Pyles’s circumstances, and neither was addressed by
the district court.

Counsel properly couched his client’s sexual abuse within
the first § 3553(a) factor, which directs attention to “the history
and characteristics of the defendant.” See Defendant’s Mem.
at 14-15; see also Sentencing Tr. at 20. The relevance of
childhood sexual abuse in child pornography sentencing is
obvious. Such an experience seems sure to produce at a
minimum deep moral confusion. Afraid, unable or unsure of
how to resist, the child is put in a hopeless bind. His sense of
self-worth and agency, his ability to hew to moral norms, are
all eroded. See Kimberly A. Tyler, Social and Emotional
Outcomes of Childhood Sexual Abuse: A Review of Recent
Research, 7 AGGRESSION & VIOLENT BEHAVIOR 567, 568-78
(2002) (summarizing research on behavioral sequelae in child
sex abuse victims, finding increased suicide, substance abuse,
gang involvement, PTSD, and other behavioral problems); see
also Abdulaziz Al Odhayani et al., Behavioural Consequences
of Child Abuse, 59 CANADIAN FAMILY PHYSICIAN 831, 831
(Aug. 2013) (similar); Am. College of Obstetricians &
 7

Gynecologists, Adult Manifestations of Childhood Sexual
Abuse, Committee Op. No. 498, at 1-2 (Aug. 2011) (similar).

The Sentencing Commission reports that childhood
sufferings of sexual abuse are rare among child pornography
defendants. “The vast majority of non-production offenders,”
i.e., ones not producing child pornography, “reported [no] . . .
history of childhood sexual abuse.” Commission Report at 164.
Perhaps because the combination is relatively rare, § 2G2.2
takes no explicit account of this characteristic, thus making its
consideration as part of § 3553(a) all the more important. And
because the Supreme Court has eliminated any requirement that
mitigating circumstances be “extraordinary,” Gall v. United
States, 552 U.S. 38, 47 (2007), childhood abuse may justify a
below-range sentence even if not “exceptional,” United States
v. Simpson, 346 F. App’x 10, 15 (6th Cir. 2009). Although the
weight to be given to such personal history is up to the district
court (subject to reasonableness review), it plainly represents a
nonfrivolous mitigation argument calling for consideration.
Without some sign of consideration, there would be no basis
for thinking—other than blind faith—that the court really
weighed the issues at stake.

Also calling for the district court’s consideration was
Pyles’s other argument—that “as a result of recent changes in
the computer and Internet technologies that typical non-
production offenders use,” § 2G2.2 “no longer adequately
distinguishes among offenders based on their degrees of
culpability.” Defendant’s Mem. at 8 (quoting Commission
Report at ii). Pyles’s counsel pointed out that “many of the[]
enhancements” to Pyles’s sentencing range under § 2G2.2
“recur in each and every” case, thereby “fail[ing] to distinguish
as to more culpable, more dangerous offenders.” Sentencing
Tr. at 14; see also Defendant’s Mem. at 12-13 (indicating that
the enhancements lead to sentences “greater than necessary,”
contrary to § 3553(a) (quoting § 3553(a))). He argued in
 8

particular, see Defendant’s Mem. at 8-9, that almost all child
pornography defendants receive the enhancements Pyles had
received for “use of a computer,” § 2G2.2(b)(6); for “material
involv[ing] a prepubescent minor,” § 2G2.2(b)(2); for material
“portray[ing] [] sadistic or masochistic conduct,”
§ 2G2.2(b)(4); and for volume of images, § 2G2.2(b)(7)—each
of Pyles’s four videos counted as 75 images, see § 2G2.2 cmt.
6(B)(ii). These enhancements collectively increased Pyles’s
range by 12 levels. See Defendant’s Mem. at 4. This panoply
of enhancements applies so frequently that it serves to conflate
offenders rather than differentiate among them. See, e.g.,
United States v. Dorvee, 616 F.3d 174, 184-87 (2d Cir. 2010).

Pyles’s critique of § 2G2.2 overwhelmingly overlaps with
the Sentencing Commission’s own misgivings. See
Defendant’s Mem. at 8 (citing Commission Report at iii, xi,
209, 323). In the Commission’s judgment, the enhancements
“relating to computer usage and the type and volume of images
. . . now apply to most offenders and, thus, fail to differentiate
among offenders in terms of their culpability.” Commission
Report at iii & n.14. The Commission has warned that these
enhancements are “outdated and disproportionate,” id. at xxi,
321, 331, and has recommended amending them, id. at xviii-
xxi. See Defendant’s Mem. at 8-11 (citing Commission Report
throughout). As we said of a similar request for departure from
the crack cocaine Guidelines, “[I]t remains of great importance
that, in its recommendations, the Commission candidly and
forthrightly exposed the weaknesses and failings of its
Guideline . . . .” United States v. Pickett, 475 F.3d 1347, 1355
(D.C. Cir. 2007). Indeed in Pickett we reversed the district
court for failing to consider how the Commission’s own
thinking supported a departure request. See id. at 1356.

The requirement of “consideration,” clearly applicable to
both Pyles’s points, is unlike other sentencing procedures, such
as calculating the range, in that it is a wholly internal process.
 9

With no way of knowing a district court’s synaptic firings, the
law necessarily looks for external manifestations. “The
sentencing judge should set forth enough to satisfy the appellate
court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking
authority.” Rita, 551 U.S. at 356 (emphasis added). Ordinarily,
“[d]oing so will not necessarily require lengthy explanation,”
but when a litigant argues, as Pyles has, “that the Guidelines
reflect an unsound judgment, or, for example, that they do not
generally treat certain defendant characteristics in the proper
way,” the judge must “say [] more.” Id. at 356-57. Rita’s
phrasing makes clear that consideration of nonfrivolous claims
and reasoned decision making are independent though
interlocking requirements.

Even for a court confronting “straightforward,
conceptually simple arguments” as in Rita itself, id. at 356, the
Court gave no license to disregard defense contentions. Instead
it emphasized that the judge had “asked questions about each
factor” Rita had given to support a variance and “summarized”
those arguments on the record. Id. at 344-45. The Court used
these responses to infer that the judge had “listened to each
argument” and “considered the supporting evidence.” Id. at
358. Although the Court might have accepted just the
summarizing or just the questions as adequate, Rita made clear
that the record must show that the district court heard and
understood the nonfrivolous argument. Without that minimum,
there is nothing from which to infer genuine consideration.

The Court reiterated this stance in dictum in Gall, when it
rejected the government’s argument that a lenient drug
sentence was procedurally infirm: “It is true that the District
Judge did not make specific references to the (unquestionably
significant) health risks posed by ecstasy, but the prosecutor did
not raise [those risks] at the sentencing hearing. Had the
prosecutor raised the issue, specific discussion of the point
 10

might have been in order.” 552 U.S. at 53-54. Compare Maj.
Op. at 16 (discussing unrelated point in Gall, 552 U.S. at 54,
that a reviewing court can discern trial court consideration of a
§ 3553(a) factor—avoidance of unwarranted disparities—from
a combination of the factor’s automatic inclusion in the
calculation of the guideline and the trial court’s extended
inquiry regarding the sentences given to the co-defendants in
the case).

Starting with Locke, our cases have spoken of Rita’s
inference in terms of a presumption. 664 F.3d at 358. But the
substance of our requirement has been the same (until today).
Just as Rita relied on the district court’s questioning and
summarizing the defendant’s claims, we have asked if the
district court has at least acknowledged the defendant’s
nonfrivolous arguments on the record. See Bigley, 786 F.3d at
173 (sentencing law calls for district court to “respond[] to a
defendant’s arguments”); see also Mack, 841 F.3d at 523. In
Locke “the record ma[de] plain” this acknowledgment: of the
two “arguments Locke claims it ignored,” the district court
“engaged in an extended colloquy” on one and “explicitly
acknowledged” the other. 664 F.3d at 358. With that bar met,
then “so long as the judge provides a ‘reasoned basis for’” the
sentence, “we generally presume that he adequately considered
the arguments.” Id. (emphasis added) (quoting Rita, 551 U.S.
at 356). Thus Locke’s presumption of adequate consideration
flowed from the quite specific acknowledgement of
defendant’s claim; we didn’t create something from nothing,
reasoned consideration from silence. What if the judge offers
a “reasoned basis” for the sentence but fails to acknowledge the
defendant’s argument? We reverse, as in Bigley. The principle
seems straightforward: if “the sentencing judge fails to respond
to a nonfrivolous argument, the presumption of adequate
consideration is rebutted.” Mack, 841 F.3d at 523 (emphasis
added).
 11

My colleagues recoil from the words “respond” and
“acknowledge” in Mack, Bigley, and Locke. Possibly they fear
that “respond” could be taken to mean a compelling refutation
of the defendant’s claims (a reading unsupported by our cases).
But I cannot fathom the majority’s objection to “acknowledge,”
a term that, if anything, understates the law’s demand. In
McKeever we recognized that passing or obscure references
cannot sustain an inference of consideration. There, a
defendant had “clearly raised sentencing entrapment” as a
reason for leniency. 824 F.3d at 1125. And, as we said, the
judge’s statements showed that she “had an inkling of the
issue” and “was aware that police [not defendant] had brought
the firearms.” Id. at 1117, 1126. But, because the court’s
comments did not “expressly address[] the issue,” we could not
discern whether the court “meant to reject” the argument or had
simply “failed to address” it. Id. at 1125-26. Holding that the
district court fell short of the requirements for Locke’s
presumption, we vacated and remanded the sentence. Id.

Thus we require actual acknowledgment: Delphic
comments won’t suffice. But contrary to my colleagues’
protestations, this bar can be met without the court’s explicitly
weighing the nonfrivolous argument. We recently took a
sentencing court’s barebones acknowledgment, “[Y]ou all have
strived to do the right thing during your period of
incarceration,” and inferred from it a consideration of the
strengths and weaknesses of the defendant’s rehabilitation
claim. Hunter v. United States, 809 F.3d 677, 685 (D.C. Cir.
2016). And in United States v. Fry, where a defendant raised
an argument similar to Pyles’s about the unreasonable
enhancements in the child pornography guidelines, the district
court’s response was skeletal but direct. 851 F.3d 1329, 1332-
33 (D.C. Cir. 2017). It said that it would have found the
conduct just as grave “even absent those enhancements,” and
we took that as adequate to “confirm[]” that the court had
considered the argument. Id. The district courts in Hunter and
 12

Fry did not say much about the nonfrivolous arguments, but we
inferred that there was substance behind their words.

With those cases on one side and McKeever on the other,
it is obvious where Pyles’s sentencing falls. The district court
in McKeever manifested an “inkling” of the defendant’s
argument, yet we remanded: the court here showed none. See
824 F.3d at 1117, 1126. Did the district court impose a
Guidelines sentence because it disagreed with Pyles on the law,
on the facts, on the weighing of the § 3553(a) factors? These
questions cannot be answered from the record; as McKeever
said, that deficiency has been a “clear” error in our circuit at
least since Locke. Id. at 1126.

Even setting aside those clear precedents, the district
court’s lack of acknowledgment is “plainly out of sync” with
the basic requirements of sentencing, as evidenced by the
holdings of our fellow circuits. See United States v. Burroughs,
613 F.3d 233, 245 (D.C. Cir. 2010). These courts, from which
the panel now splits, are all but unanimous in requiring direct
evidence of consideration. See, e.g., Flores-Mejia, 759 F.3d at
259 (sentencing court abused its discretion by replying to
variance argument with only, “OK, thanks. Anything else?”);
United States v. Temprano, 581 F. App’x 803, 806-07 (11th
Cir. 2014) (vacating sentence where judge “fail[ed] to give any
explanation for his chosen sentences” and “gave no reason for
rejecting Temperano’s request for a below-Guidelines sentence
and the government’s 24-month sentence recommendation”);
United States v. Emmett, 749 F.3d 817, 822 (9th Cir. 2014)
(noting that “district courts must provide an ‘explanation,’ not
merely consideration’” and vacating denial of request to
terminate supervised release (quoting United States v. Trujillo,
713 F.3d 1003, 1010 (9th Cir. 2013)); United States v. Corsey,
723 F.3d 366, 377 (2d Cir. 2013) (relying on Rita to vacate
sentence where, among other faults, the district “court never
resolved appellants’ significant arguments” for a lower
 13

sentence even though it offered reasons for its decision); United
States v. Wallace, 597 F.3d 794, 804-05 (6th Cir. 2010) (citing
Rita and holding that “failure to even acknowledge Defendant’s
argument” is sentencing plain error); Lynn, 592 F.3d at 585
(“Simply put, because there is no indication that the district
court considered the defendant’s nonfrivolous arguments prior
to sentencing him, we must find error.”); United States v.
Mondragon-Santiago, 564 F.3d 357, 363-64 & n.5 (5th Cir.
2009) (district court committed plain error when it “did not
squarely address Mondragon-Santiago’s sentencing
arguments” and “the court’s statement of reasons did not
further illuminate its reasoning”); United States v. Miranda,
505 F.3d 785, 796 (7th Cir. 2007) (vacating sentence because
district court’s remarks about defendant’s sanity did not show
adequate consideration of defendant’s “specific arguments
regarding the effect of his mental illness on sentencing”).

My colleagues see no problem. They dilute Rita’s
requirement, saying that “[i]f a trial judge states a reasonable
decision in support of sentencing and that decision obviously
forecloses an objection raised by the defendant,” then we must
be “very cautious” before finding an absence of adequate
consideration. Maj. Op. at 16. Disregarding Rita’s careful note
that the judge had “asked questions about” and “summarized”
Rita’s arguments on the record, 551 U.S. at 344-45, the
majority invokes Rita for a much slacker idea: if the judge
“finds that the circumstances do not warrant a below-
Guidelines sentence,” we may infer consideration of each
argument. Maj. Op. at 12. And this applies even though the
reasoning offered lies within a framework hermetically sealed
from defendant’s contentions. Silent disregard now stands in
for the reasoned consideration required by Rita. Compare
McKeever, 824 F.3d at 1117, 1126 (remanding despite
evidence that district court had an “inkling” of counsel’s
argument).
 14

As we have never before accepted such a flaccid version
of Rita, my colleagues are driven to rewrite our precedents.
They say that the district court in Locke “did not address every
mitigating argument offered by the defendant.” Maj. Op. at 11.
But there we found that the court had specifically addressed
“both arguments Locke claimed it ignored.” 664 F.3d at 358.
The majority also leans on language in United States v. Borda,
but in that case we determined that the unaddressed mitigation
claim was “irrelevant” (i.e., frivolous) and did not demand any
consideration. 848 F.3d 1044, 1072 (D.C. Cir. 2017). As for
the critical passages in Mack, McKeever, Hunter, and Fry—not
a word.

Finding no direct authority for their view, my colleagues
rely on an analogy to our decisions that a judge need not
acknowledge every § 3553(a) factor, reasoning that “[t]he same
is true for mitigation arguments . . . .” Maj. Op. at 15; see
Locke, 664 F.3d at 358. True enough; just as we don’t ask
courts to formulaically recite inapposite § 3553(a) factors, we
require consideration only of nonfrivolous arguments. My
colleagues also omit our long-standing recognition, paralleling
the rule on a defendant’s assertion of nonfrivolous objections,
that “[w]hen a defendant has [] asserted the import of a
particular § 3553(a) factor,” the sentencing court is required to
address that factor. United States v. Simpson, 430 F.3d 1177,
1187 (D.C. Cir. 2005); accord United States v. Brinson-Scott,
714 F.3d 616, 627 (D.C. Cir. 2013) (“A sentencing court
satisfies the requirements of the Sentencing Reform Act so long
as it considers the section 3553(a) factors implicated by the
defendant’s arguments.” (emphasis added)). So too here.

Though formulating what appears to be a zero-scrutiny
principle, my colleagues also adopt a fallback position, saying
that in fact the district court “responded” to Pyles. Maj. Op. at
19. First they note that Pyles made “six mitigation arguments”
and that his appeal involves just two, id. at 4, suggesting that
 15

the court adequately considered the others. But at sentencing
Pyles voiced only two reasons for a downward variance—the
two at issue here. His other arguments were either specifically
couched not as a variance request, Sentencing Tr. at 12, or as
responses to issues raised by the district court, e.g., id. at 21-
22. In terms of nonfrivolous arguments for a downward
variance, the district court was batting 0 not .667.

The majority also says that the district court “expressed
skepticism towards,” labeled as “weak,” and “implicitly
rejected” Pyles’s argument about § 2G2.2. Maj. Op. at 5-6, 16.
As for the purported “skepticism,” my colleagues rely on
district court comments discussing unrelated contentions made
by government counsel before Pyles’s attorney even had a
chance to speak. Id. at 5-6 (citing Sentencing Tr. at 9 (rejecting
government’s argument that Pyles’s cooperation and small
amount of child pornography merited a lower sentence)); see
id. at 18-19. In some circumstances a court, already familiar
with the sentencing briefs, might preemptively respond to a
defendant’s oral argument. But the comments the majority
cites, and the government arguments they rejected, had nothing
to do with the points Pyles’s counsel would raise.

Read out of context, there is one point of seeming overlap,
the prosecutor’s comment that sometimes the Guidelines might
be too high, sometimes too low. Sentencing Tr. at 9. But the
prosecutor’s point, evident in his immediately following
statements and echoed in his brief, was that Pyles’s sentencing
range (save for one enhancement) was appropriate, id., and that
the judge shouldn’t attempt to disrupt § 2G2.2’s balancing act
by “cherry-picking” among enhancements, Gov’t Mem. at 10-
11. Where the prosecutor urged disregard of an enhancement
(the one for distribution), it was on grounds of the parties’
having mistakenly omitted it in reaching the plea agreement,
not on any policy dispute with the Guidelines. This was also
the only enhancement that Pyles did not attack on policy
 16

grounds. The government’s arguments complemented but in
no way coincided with Pyles’s.

As for purported responses to Pyles’s arguments, the
majority describe the district court as having said that
“criticisms of the child pornography guidelines were weak in
this case.” Maj. Op. at 6. Unfortunately their paraphrase bears
little relation to the colloquy it describes. Pyles’s counsel stated
early on that the travel offense is considered to be “more
horrific” than possession even though it has a lower aggregate
offense level. Sentencing Tr. at 15. As counsel transitioned to
his main point, the district court interrupted to say that people
might “disagree” about the relative seriousness of each crime
but that the court personally felt that the travel conduct is
“impossible” to defend. Id. at 15-16. The court then doubled
back, “But you could make an argument—certainly I’m not
telling you you should. I mean, you can certainly make an
argument that distri[buting] pornographic images of
prepubescent children of a sadomasochistic nature over the
internet is even more serious conduct than travelling interstate,
per se.” Id. at 16 (emphasis added). Following that the court
returned to its agreement with Pyles’s counsel that the travel
offense was “so awful.” Id. These comments—part
concurrence, part off-the-cuff advice—offer no assessment of
Pyles’s mitigation argument. To my colleagues though, this
passage is laden with subtext. Later they claim that what the
judge really meant here was that the “Guidelines enhancement
for sadomasochistic images was appropriate.” Maj. Op. at 19.
Again, the transcript speaks for itself.

My colleagues’ evidence of implicit consideration is no
more apt. In a status conference four months before sentencing,
the district court mentioned that it had spent “a ‘considerable
amount of time’ reviewing” the case. Maj. Op. at 16 (quoting
Status Conference Tr. at 3 (May 28, 2014)). I do not take that
generality to be a serious answer to the question whether the
 17

court considered defendant’s arguments. At the same status
conference, the court ordered a psychological examination to
determine “[w]hether or not [Pyles] is a pedophile”—a
diagnosis certainly relevant as yielding useful background
information, but hardly a substitute for judicial consideration of
Pyles’s mitigation arguments. Id. And my colleagues refer to
the judge’s comment about getting his “glasses repaired so that
he could read everything.” Maj. Op. at 17. Pity the defendant
in the next case whose judge mentions having just gotten a new
hearing aid; shall we then find that the district court assiduously
“listened to each argument”? Cf. Rita, 551 U.S. at 358. None
of these examples evince tacit rejection of Pyles’s § 2G2.2
argument, as opposed to simple disregard, let alone the basic
acts of acknowledgment that were critical in Rita, Locke, Fry,
and Hunter. Rather the majority’s point seems to be that any
judge who read the briefs and sat through oral argument should
have picked up on Pyles’s arguments. Maj. Op. at 17-19. I
agree: the district court should have, but the record offers no
evidence that he did.

On the sexual abuse claim, the majority even concedes that
the court made no acknowledgment. Id. at 20. But they insist
that the judge must have read and considered it because the
abuse featured prominently in multiple documents that crossed
the court’s desk: the pre-sentence report; Pyles’s first
sentencing memorandum; and the psychological evaluation.
The majority puts particular emphasis on this last document,
reasoning that because the judge ordered the evaluation, he
must have considered everything in the ensuing report. But the
district court ordered the evaluation not to investigate Pyles’s
mitigation argument, but solely to learn “[w]hether or not
[Pyles] is a pedophile.” Status Conference Tr. at 3. And at
sentencing, its comments about the report were focused on
potential recidivism, a matter linked to possible pedophilia.
See, e.g., Sentencing Tr. at 9-10. The record thus confirms that
the court’s interest in Pyles’s mental health was specific, not
 18

holistic; there is little in human experience meriting the
majority’s assumption to the contrary. When you go to the
emergency room for a broken ankle, you might well tune out
the intake nurse’s advice about flu shots.

Had the district court discredited Pyles’s abuse or rejected
the § 2G2.2 arguments, the majority and I might well have
deferred to those decisions. But rather than tackling Pyles’s
arguments, the court seemed to assume that a downward
variance would be inappropriate. It responded to the
government’s request for leniency by saying, “Essentially,
you’re asking for a variance of this Court downward. . . . I’m
hard-pressed to see how that could possibly be the case here,”
Sentencing Tr. at 5, followed by, “I don’t know how a below-
Guideline Range [] sentence could ever deter anyone from
conduct of this nature,” id. at 6, and, “There’s no way this Court
could ever consider a variance downward in this case. . . . [I]t’s
not conceivable,” id. at 9. Having dismissed the government’s
arguments for a shorter sentence, the court then asked Pyles for
his “best argument for downward variance,” but it immediately
cautioned that variance was “an extraordinary request.” Id. at
12. The district court’s labeling a downward variance “an
extraordinary request” and dismissing it as “not conceivable,”
id. at 9, 12, come close to conditioning a variance on
“compelling reasons,” a condition that our court has found to
be an improper “presumption that the Guidelines range is
reasonable,” Terrell, 696 F.3d at 1262. Indeed, after Pyles’s
arguments for a variance, the district court explicitly expressed
its assumption that its choices were only between a Guidelines
sentence and an upward variance. “[T]his is not a case where
the low end of the Guideline Range . . . is appropriate. . . . The
challenge this Court has had to wrestle with is whether to vary
upward.” Sentencing Tr. at 33.

From this record, the majority assembles various
conclusory and often unsubstantiated statements and calls it
 19

reasoned decision making. See Maj. Op. at 5. But even apart
from the failure to respond to defense counsel’s contentions,
the district court’s discussion at sentencing qualifies as
reasonable (if at all) only by the skin of its teeth. The court
placed great weight on the need to protect the public, the need
for deterrence, and the seriousness of the offense. Sentencing
Tr. at 17, 33. It focused particularly on the images, noting that
they “aren’t just obscene, but they involve prepubescent
children and they involve sadomasochistic images on top of
that,” id. at 32. And it stressed the interstate travel, which it
saw as “demonstrate[ing] overwhelmingly a commitment to
and desire to engage in sexual conduct with a minor,” even as
it acknowledged that many trips of a length classifiable as
interstate in the Washington metropolitan area would elsewhere
be purely intrastate. Id. at 15-16. Despite repeatedly invoking
the seriousness of the pornography offense, the court never
even acknowledged that much of what the court found so
serious, such as the type of images, is almost universal in child
pornography cases. Commission Report at iii & n.14. Had the
court openly grappled with this issue—explicitly put before it
by defense counsel—we would be in a much better position to
understand why it chose the sentence it did. See Bigley, 786
F.3d at 16.

The court also emphasized the psychological report, which
it read as indicating that Pyles “does not think he needs” prison
sex offender treatment, that Pyles minimized his offenses, and
that Pyles “blam[ed] [his inclinations] on drug usage,” an
excuse that the court rejected. Sentencing Tr. at 9-10; see id. at
11. On all these issues the court to a considerable degree
distorted both the report and the defendant’s position. In
criticizing defendant for purportedly blaming his drug
addiction, the court disregarded Pyles’s argument that both his
drug use and his criminal behavior followed directly from the
larger issue—his childhood sexual abuse—which the court
persisted in ignoring. See Defendant’s Mem. at 13-14.
 20

(Because the sex abuse led to Pyles’s criminal behavior as well
as drug use, the majority appears ready to allow any district
court comment about the drug use to double as a comment
about the sex abuse. Maj. Op. at 20. Applying their reading
consistently would lead to very curious results, such as the
district court implying that child sexual abuse cannot be “a
factor in a person’s desire to engage in pedophilia.” See
Sentencing Tr. at 10 (discussing “drug usage”).)

The court’s repeated emphasis on Pyles’s unwillingness to
undergo sex offender treatment was also misplaced. After the
district court insisted that the report showed no “hope” of Pyles
rehabilitating, even the prosecutor politely chided, “I’m not
sure that the report makes it quite as clear that [Pyles] would
not be amenable to treatment.” Id. at 10. The psychologist in
fact emphasized that Pyles had participated willingly in the
evaluation and suggested that Pyles’s reticence about sex
offender treatment could be addressed with therapy. The report
concluded that Pyles would have a “low” risk of recidivism if
he undertook both sex offender and substance abuse treatment
but that successfully completing only one, or neither, would
create, respectively, a moderate, or high, risk. Gov’t
Supplemental Sentencing Mem. at 3. Although Pyles had
expressed reticence only about sex offender treatment, the court
seems to have assumed that Pyles would refuse both that and
drug treatment, thus leading to the “high” risk outcome, or that
failing sex offender treatment alone would create such a risk.
See Sentencing Tr. at 11; see also id. at 16 (“He could be out
there, once out of jail, posing the same risk.”).

In his allocution Pyles himself explained that his initial
misgivings about sex offender treatment stemmed from the
prison program’s penile plethysmograph procedures, but said
that after talking with others, he had decided to “participate in
the sex offender treatment regardless.” Id. at 27. At the time
of sentencing, therefore, Pyles had apparently withdrawn his
 21

misgivings on the sex therapy. Quite a few courts of appeals
share those misgivings about plethysmography and have
vacated post-release conditions making it mandatory. See
United States v. McLaurin, 731 F.3d 258, 263-64 (2d Cir.
2013); see also United States v. Medina, 779 F.3d 55, 71 (1st
Cir. 2015); United States v. Weber, 451 F.3d 552, 554 (9th Cir.
2006). So a degree of hesitance about such a procedure can
hardly be held against a defendant, especially when in the end
he accepts the psychologist’s recommendation to undergo
therapy. See Sentencing Tr. at 27. As further evidence of his
interest in therapy, Pyles asked the court (after sentence was
announced) to recommend him for a Bureau of Prisons drug
treatment program. Id. at 39.

Beyond the court’s unmoored discussion of the
psychologist’s report, its oft-repeated concerns about
recidivism appear to have been based more on intuition than
information. See Dissent, supra, at 20. The Commission has
compiled considerable data on the subject. A study of 610
defendants convicted of “non-production” child pornography
offenses, tracked for an average of eight and a half years after
release, yielded a 7.4% rate for “sexual recidivism”—
encompassing 3.6% for “contact” offenses, 2.3% for new child
pornography offenses, and 1.5% for “non-contact sex offenses
involving obscenity or commercial sex.” Commission Report
at 294-301. “General” recidivism of sex offenders,
encompassing all crimes, is obviously higher but still in line
with that of other defendants. Id. at 308-10; see also Matthew
R. Durose et al., Bureau of Justice Statistics, Recidivism of
Prisoners Released in 30 States in 2005: Patterns from 2005 to
2010, at 8 (2014) (sexual assault offenders’ recidivism lower
than that of assault or robbery offenders). As one district court
observed as part of an exhaustive analysis of the subject,
“Recent research suggests that the recidivism rate of child
pornography offenders may be low, with most child
pornography viewers unlikely to engage in future sexual
 22

offenses.” United States v. R.V., 157 F. Supp. 3d 207, 240
(E.D.N.Y. 2016).

These studies are not the end of the matter. Actual
recidivism may be higher than known recidivism, given the
underreporting of sex crimes. Commission Report at 295 &
n.12. And general recidivism is somewhat higher for
defendants whose criminal history category is (like Pyles’s)
above I. Id. at 308-10. The court’s individualized assessment
of the defendant is certainly relevant too, but here the person in
the courtroom with possibly the best opportunity to aid in such
assessment was the prosecutor, who had “handled these cases
[] exclusively for a number of years” and argued consistently
for a sentence below the corrected Guidelines range.
Sentencing Tr. at 6.

Finally, as the majority repeatedly mentions, the court
intended to cancel out the “huge break” that Pyles received
through the government’s agreeing to a plea without a
distribution charge, thereby sparing Pyles, as the judge saw it,
the five-year mandatory minimum attached to distribution. Id.
at 7; Maj. Op. at 5, 19, 21. In fact the lower end of the range
that Pyles agreed to (78-97 months) was a year and a half more
than the mandatory minimum, and the sentence Pyles
eventually sought (87 months) was well beyond that minimum.
Pyles was spared the mandatory minimum only in a nominal
sense.

If the district court’s reasoning seems incomplete, there is
good reason for that: the court never responded to two
arguments that intersected with most of the issues in this case.
The court clearly erred by not addressing Pyles arguments and
leaving us with the type of incomplete record that Rita and its
sequels in our and other circuits sought to prevent.
 23

More generally, the majority’s new presumption cannot be
reconciled with the goals of federal sentencing reform. As is
well known, the Sentencing Reform Act sought to limit
sentencing discrepancies arising from the predilections of
individual judges. To the extent that the Act’s solution was
mandatory Guidelines, it collapsed from constitutional
infirmities, which the Supreme Court solved by removing the
Guidelines’ mandatory character. Booker, 543 U.S. at 245. By
upending the relationship between sentences and the
Guidelines, Booker necessarily reset the dynamic between
district and appellate courts. See Gall, 552 U.S. at 46 (“Our
explanation of ‘reasonableness’ review in the Booker opinion
made it pellucidly clear that the familiar abuse-of-discretion
standard of review now applies to appellate review of
sentencing decisions.”). The Court read the statute as
establishing review not only for substantive reasonableness but
also for conformity to the procedural requirements of law—
most obviously such matters as proper calculation of the
Guidelines sentence but also “fail[ure] to consider the
§ 3553(a) factors” and “fail[ure] to adequately explain the
chosen sentence.” Id. at 51. Flowing from that latter
requirement is Rita’s more specific rule that the court “satisfy
the appellate court that he has considered the parties’
arguments.” See Rita, 551 U.S. at 356. As the Court has
explained, Rita’s procedural check is needed “to promote the
perception of fair sentencing.” Gall, 552 U.S. at 50. Indeed,
one might add, the reality of fair sentencing.

“Although the federal system’s procedural rules establish
[relatively] gentle[] checks on the sentencing court’s discretion
. . . , they nevertheless impose a series of requirements on
sentencing courts that cabin the exercise of that discretion.”
Peugh v. United States, 133 S. Ct. 2072, 2084 (2013). The
requirement to consider the § 3553(a) factors is procedural but
it guides the substance of the judge’s reasoning; likewise the
requirement to consider nonfrivolous arguments helps ensure
 24

that sentences are driven by context, not caprice. See generally
Gall, 552 U.S. at 51 (procedural review is to precede
reasonableness review).

In contrast to this rigorous procedural review, the appellate
courts’ post-Booker role in monitoring for substantive
reasonableness has been inherently weak. See generally id. at
51-52. With a swarm of factors likely to be relevant, many of
them involving subtle questions of degree, reversal for
unreasonableness would be likely only to replace a single
judge’s weighing of imponderables with a three-judge panel’s
weighing. Appellate intervention in such circumstances is
unlikely to provide much guidance for lower courts and even
more unlikely to develop useful rules of law. See Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). We
recognized the comparative advantages of the two courts early
in the post-Booker era, see United States v. Gardellini, 545 F.3d
1089, 1093 n.3 (D.C. Cir. 2008), and in the almost ten years
since then we appear to have never found a sentence
substantially unreasonable (apart from cases such as Pickett
where the unreasonableness stemmed from an error of law).

With substantive discretion almost entirely in the hands of
district courts, any useful role for the courts of appeals in
“promot[ing] the perception of fair sentencing” lies in their
enforcement of the statute’s procedural requirements. See
Gall, 552 U.S. at 50. The panel’s readiness to gloss over a
district court’s non-recognition of a serious argument for
(relative) leniency goes far to abdicate that role and thus restore
the status quo ante the Sentencing Reform Act: virtually
untrammeled district court authority over sentences. Perhaps
that outcome would be preferable on broad jurisprudential
grounds, but it is not what Congress and the Supreme Court
have wrought. The majority discards the basic procedural
requirements and thus sacrifices the interests of consistency,
coherency, and clarity of thought.
 25

The majority’s new presumption is particularly ill-advised
when dealing with a sentence derived from § 2G2.2, which
exists in spite of the Commission’s judgment as to the sentence
called for by the § 3553(a) factors. Though § 2G2.2 originated
with the Commission, its content has been repeatedly diverted
from the Commission’s reasoning by congressional mandates.
See generally U.S. Sentencing Commission, The History of the
Child Pornography Guidelines (Oct. 2009). And see United
States v. Grober, 624 F.3d 592, 608 (3d Cir. 2010) (agreeing
with district court comment that “to say that the final product
is the result of Commission data, study, and expertise simply
ignores the facts”). The court in Dorvee found that in view of
these exercises of force majeure the Guideline was one “that,
unless applied with great care, can lead to unreasonable
sentences that are inconsistent with what § 3553 requires.” 616
F.3d at 184. The Second Circuit has recently followed through
on its warning in Dorvee, reversing a child pornography
sentence for relying too heavily on § 2G2.2 and its “all-but-
inherent” enhancements. United States v. Jenkins, 854 F.3d
181, 188-91 (2d Cir. 2017). This court need not go so far here,
but Dorvee and Jenkins mark § 2G2.2 cases as among the least
suitable for a new policy of indifference to the modest
requirements of procedural regularity. Compare Rita, 551 U.S.
at 350 (presumption of reasonableness appropriate when
judge’s finding and “Commission’s judgment” overlap).

* * *

The other elements of plain error are easily met here. The
third element, that it “affected substantial rights,” requires “a
reasonable likelihood that the error affected the outcome.”
Terrell, 696 F.3d at 1263 (internal quotation marks omitted);
see Burroughs, 613 F.3d at 245. The defendant’s burden of
“showing prejudice” is “somewhat lighter in the sentencing
context than for errors committed at trial.” Burroughs, 613
F.3d at 245 (internal quotation marks and alterations omitted).
 26

The defendant “need not even demonstrate that it is ‘more
likely than not’ that his sentence will change.” United States v.
Williams, 358 F.3d 956, 966 (D.C. Cir. 2004). Because Pyles’s
variance requests double as requests for a shorter within-range
sentence, “[t]he question isn’t whether defendant’s prison term
would have been drastically shorter—just whether it was
reasonably likely that the prison term would not have been as
long.” In re Sealed Case, 573 F.3d at 852. Given the court’s
omission here of any reference to two major contentions going
to the just application of its discretion, and its troubling
insistence that a downward variance was “not conceivable,”
Sentencing Tr. at 9, there is a “reasonable probability that the
court might not have imposed” the sentence “if it had fulfilled
its obligation” to consider Pyles’s nonfrivolous arguments for
a variance, Burroughs, 613 F.3d at 245 (quoting United States
v. Perazza-Mercado, 533 F.3d 65, 78 (1st Cir. 2009)).

The final consideration for plain error is whether the
procedural flaw “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v.
Hunt, 843 F.3d 1022, 1029 (D.C. Cir. 2016) (alteration
omitted). In the sentencing context, the first three plain error
elements—an error that was clear and reasonably likely to have
affected a prison term—all but establish the fourth. See Terrell,
696 F.3d at 1263. An inadequate record seriously affects the
judicial process, because “a reviewing court and the public
cannot adequately evaluate the judge’s sentence selection.”
Bigley, 786 F.3d at 16; accord United States v. Akhigbe, 642
F.3d 1078, 1087 (D.C. Cir. 2011) (explaining that a “failure to
explain adequately the sentence” meets the “seriously
affecting” element when it “precludes appellate review”
(brackets omitted)). That is certainly the case here. Having
found that all four elements of plain error are present, I would
vacate and remand for the district court to consider Pyles’s
arguments.