United States v. Irey

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

JULY 29, 2010

No. 08-10997 JOHN LEY

________________________ CLERK

D. C. Docket No. 06-00237-CR-ORL-31-DAB

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

WILLIAM IREY,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(July 29, 2010)

Before DUBINA, Chief Judge, and TJOFLAT, EDMONDSON, BIRCH, BLACK,

CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR, MARTIN and

HILL,* Circuit Judges.

*

Senior United States Circuit Judge James C. Hill elected to participate in this matter

pursuant to 28 U.S.C. § 46(c).

CARNES, Circuit Judge:

“The federal courts of appeals review federal sentences and set aside those

they find ‘unreasonable.’” Rita v. United States, 551 U.S. 338, 341, 127 S. Ct.

2456, 2459 (2007) (citing United States v. Booker, 543 U.S. 220, 261–63, 125 S.

Ct. 738 (2005)). With that statement the Supreme Court opened its opinion in the

Rita case. Later in the opinion the Court was more specific and emphatic:

In sentencing, as in other areas, district judges at times make mistakes that

are substantive. At times, they will impose sentences that are unreasonable.

Circuit courts exist to correct such mistakes when they occur. Our decision

in Booker recognized as much.

Rita, 551 U.S. at 354, 127 S. Ct. at 2466–67. We believe that the Supreme Court

meant what it said in the Rita opinion and elsewhere about our duty to correct

sentencing mistakes. At the same time, we recognize that our substantive review

of sentences is deferential and that we only look to see if the district court abused

its discretion by committing a clear error in judgment. Even so, the sentence in

this case can withstand review only if deference amounts to abdication, if

sentencing discretion is unbridled, and if “unreasonable” is a hollow term. The

sentence that the district court imposed is a clear error in judgment, a mistake, and

it is our responsibility to “correct such mistakes when they occur.”

The sentence is substantively unreasonable primarily, but not solely, because

of the nature and extent of William Irey’s criminal conduct. The steady stream of

2

criminal cases flowing through this Court brings us many examples of man’s

inhumanity to man, and we see a depressingly large number of crimes against

children. But the sexual crimes that Irey committed against some of the most

vulnerable children in the world set him apart. He raped, sodomized, and sexually

tortured fifty or more little girls, some as young as four years of age, on many

occasions over a four- or five-year period. He also scripted, cast, starred in,

produced, and distributed worldwide some of the most graphic and disturbing child

pornography that has ever turned up on the internet.

The horrific nature of Irey’s crimes resulted in an adjusted offense level that

would have led to an advisory guidelines range of life imprisonment. Because the

government had charged all of Irey’s crimes in just one count, the statutory

maximum was 30 years and that had the effect of reducing the guidelines range to

30 years as well. The district court, however, did not impose that sentence.

Instead, after deciding that pedophilia was an “illness” that had impaired Irey’s

volition, and pronouncing that Irey himself was a victim, like all of the little

children he had sexually violated for so long, the district court deviated downward

from the 30-year guidelines range and imposed a sentence of only 17 ½ years. Our

duty to set aside unreasonable sentences requires that we set aside this one.

3

I. The Criminal Conduct

William Irey had a seemingly insatiable sexual appetite. Or as a psychiatrist

he later retained would phrase it, Irey was “highly sexualized.” While in Orlando,

where he lived and had his business, Irey indulged his sexual appetite by

consorting with prostitutes on a weekly basis. As the psychiatrist put it, Irey

“engaged in other forms of sexually disordered behavior with prostitutes (e.g.,

sadomasochistic acts).” That went on for 15 years, despite the fact that he was

married the entire time.

Starting in 2001 Irey began spending two weeks out of every month in

China on business. On the weekends when he was there he would indulge himself

in more “sexually disordered behavior” by traveling to brothels in different Asian

countries. Early on he went to a brothel in Cambodia that featured underage girls

and discovered that he enjoyed having sex with children. Over a period of four or

five years, he “visited numerous brothels where they had underage children.” Irey,

who is 5'10" and weighs 200 pounds, was in his forties at the time. All of the

children he sexually abused were underage girls; none of them was older than

sixteen, and some of them were only four, five, or six years old.

Irey went to those brothels and had sex with the children “many many

times,” as he recounted it, during his numerous trips to that part of the world, and

4

as time went on he became “more and more obsessed and was returning to Asia

more and more often” to sexually abuse children. He paid the Cambodian brothels

up to $1,500 for the use of each child, and he would typically buy two or three of

the children at a time. When he was too busy in China on business to get away for

weekend visits to Cambodia, Irey would sometimes pay to have some of the young

girls flown to him so that he could sexually abuse them when he found the time.

Irey’s sexual violation of the children did not end until August of 2006 when law

enforcement in this country finally caught up with him.

The little Cambodian children whom Irey victimized were “abjectly

impoverished” and, as the district court noted, “perhaps the most vulnerable of the

world’s society.” We know some of the details of what Irey did to them because

law enforcement agents seized his computers and found that he had memorialized

at least part of what he had done in photographs and videos for his later viewing

pleasure. On one of his computer hard drives there were more than 1,200 images

of Irey sexually abusing the children, and that number does not include the obscene

images Irey produced of the children that do not show him in the picture.

Differentiating the children in so many images taken over a period of years is

difficult, but we know that Irey sexually victimized at least fifty different underage

5

girls.1

The photographs and videos Irey produced reveal some details of how he

violated and debased the children.2 There are images showing “Irey on a bed with

several prepubescent female Asian children performing oral sex on him while he

performs oral sex on them.” Other images depict “Irey engaged in anal and

vaginal intercourse with a prepubescent Asian female with the words ‘9 Yo Fuck’

marked on her body,” and “an arrow is painted on her body which points to her

vaginal area.” Some of them show “the writing ‘Front,’ ‘Back,’ ‘Brown,’ ‘Back

1

The number of little children who were Irey’s victims is literally countless. Irey himself

apparently did not keep count, although he did recall that he bought children to sexually abuse

“many many times,” usually two or three at a time, over a four- or five-year period. Some of the

more than 1,200 obscene images Irey produced to preserve his perverse exploits show the faces

of many children, but the images were not framed and focused to aid a head count, and with the

passage of years the appearances of the children undoubtedly changed as they grew older while

being sexually abused.

The Presentence Report states that “[t]here were over forty victims,” and Irey did not

object to that statement but instead admitted it was true. During the sentencing hearing Assistant

United States Attorney Cynthia Hawkins, who prosecuted the case, described Irey’s criminal

conduct. In doing so she represented to the court that the number of his child victims was “over

50.” She also showed the court photographs of the faces of “about 50” of the child victims taken

from the more than 1,200 images of Irey abusing them. Irey did not object to those photographs

or to the representation that they showed about 50 of his victims or that there were “over 50”

victims. In setting out its sentence findings, the district court stated about the circumstances of

the crime: “I cannot quarrel with Ms. Hawkins’ description of that.” Based on that finding, and

considering the AUSA’s undisputed representations at the sentence hearing, as well as the

probability of an undercount, we will use 50 or “at least 50” as the number of victims.

2

All of the descriptions of Irey’s conduct contained in this and the next paragraph in the

text are quoted from the Presentence Report. Irey did not contest the accuracy of these

descriptions. Instead, he wrote to the district court that: “I have read the presentence

investigation report dated 11-26-07. I have done the things which are graphically spelled out in

it.” The district court adopted all of the factual statements contained in the report as the findings

of the court.

6

door,’ ‘9 Yo Fuck’ on prepubescent girls’ bodies. The writing has arrows pointing

to the vaginal and anal areas.” Other images are of Irey “engaged in vaginal and

anal intercourse with prepubescent Asian girls” who are “tied up and bound with

black and grey duct tape.” There are also images “of Irey with nude prepubescent

children posing as trophies.”

Irey’s defilement of the little children did not stop at rape, sodomy, and

humiliation. He also tortured them. There are images of “Irey inserting a plastic

green/yellow glow stick, dildos, cockroaches and candy in the vaginal cavity of

prepubescent Asian females.” Some images show “Irey inserting a plastic tube

into the vagina of a prepubescent Asian female. Several of the images show the

plastic tube containing cockroaches crawling into the vagina of these children.”

One image shows him “performing vaginal intercourse on a prepubescent girl” and

“[i]mbedded on the image [in all capitals] is the phrase: ‘Big Cock Push Bug Deep

Into 9 Yo Girl, She Hurt in Pane.’”

If Irey felt any guilt about purchasing helpless little girls and subjecting

them to pain and degradation, the images he recorded do not show it. In some of

them he can actually be seen smiling as he inflicts the sexual abuse.

Irey did not use the massive amount of child pornography he produced only

for his own prurient perusal; he did not keep it to himself. He used copies of the

7

images he made to gain access to the collections of other purveyors of child

pornography. Irey gave them copies of the pictures and videos he had produced

showing his sexual violation and humiliation of the little Cambodian children in

return for their waiver of the access fee to the collections they already had on their

websites. Through that type of trade the operators of those websites were able to

add Irey’s graphic images to their collections, which led to those images being

spread around the world. Irey in turn was able to save some money while

expanding his collection of child pornography, and he was also able to minimize

the use of his credit card, which made it easier for him to hide what he was doing

from his wife.

II. The Capture and Conviction

Irey’s use of the internet led to his capture. Federal agents intercepted and

traced to Irey email messages that he had sent to an illegal website offering child

pornography. In one of those emails, which Irey sent in mid-January 2006, he

asked the website operator: “do you remember me from before. could I trade you

some of my latest pics for 30 days on your site. Let me know a good address to

send you some samples.” About a month later, agents intercepted another email

from Irey, which stated: “do you want trade some new pics never saw before. I

trade this for site access.”

8

The agents searched Irey’s house on August 13, 2006, and seized six

computers. On a hard drive they found a collection of more than 1,200 images of

Irey sexually violating young girls. The agents sent those 1,200 plus images to the

National Center for Missing and Exploited Children, which in turn provided an

extensive report about where the images had been seen before. More than 100

separate law enforcement agencies reported to the National Center that they had

previously turned up some of those images of Irey’s sexual abuse of underage girls

in their investigations of child pornography. The graphic images Irey had

produced and distributed were already widely known as the infamous “pink wall

series,” so named because of the pink walls that could be seen in the background of

some of the photos and videos. The series included images of some of the worst

child sexual abuse the agents had ever seen. And, as the Assistant United States

Attorney pointed out at the sentence hearing: the pictures of these children, some

of whom are “four or five, six years old . . . will forever be out there online.” As

the record of their abuse continues to circulate, “[t]hey will be victimized over and

over again.”

In a one-count indictment filed on December 13, 2006, Irey was charged

with violating 18 U.S.C. § 2251(c). The indictment alleged that he “did knowingly

employ, use, persuade, induce, entice, and coerce minors to engage in sexually

9

explicit conduct outside the United States, for the purpose of producing visual

depictions of such conduct, and transporting such visual depictions to the United

States by any means, including by computer and mail.”

Irey was taken into custody on December 14, 2006. He was released on an

unsecured bond conditioned on his being housed in a psychiatric facility “for

treatment of mental health issues related to the current charges.” He remained at

that facility near his home for at least thirteen months.

At a change of plea hearing on July 2, 2007, Irey pleaded guilty to one count

of violating 18 U.S.C. § 2251(c). When asked to tell the court what he had done,

Irey replied: “Went to—overseas, visited numerous brothels where they had

underage children and photographed them, had sex with them, and had them on my

laptop when I entered the United States.” He added that it happened over a period

of four years,3 the last time being in 2006. Irey agreed with the government’s

statement at the hearing that he had admitted to the agents that while overseas he

had sex with children he knew were minors, had produced pornographic images of

that, and had then transported those images back into this country.

3

Although Irey stated at the change of plea hearing that his sexual abuse of the children

occurred over a period of four years, he told Dr. Ted Shaw that it occurred over a period of five

years.

10

III. The Sentencing Proceedings and Sentence

A. The Calculation of the Guidelines Range

The Presentence Report began the calculation of Irey’s guidelines sentencing

range with a base offense level of 32 under U.S.S.G. § 2G2.1(a), because the

offense was one involving the sexual exploitation of minors by production of

sexually explicit visual or printed matter. Added to that base offense level were

four levels under § 2G2.1(b)(1) because the offense involved children under the

age of 12; two levels under § 2G2.1(b)(2)(A) because the offense involved the

actual commission of sexual acts; two levels under § 2G2.1(b)(3) for distribution

of child pornography; and four levels under § 2G2.1(b)(4) because it involved

material portraying sadistic conduct, producing an adjusted offense level “subtotal”

of 44. Then two levels were added under § 3D1.4 as a result of grouping because

of multiple victims.4 Those additions produced a combined adjusted offense level

of 46.5 From that were deducted two levels under § 3E1.1(a) for acceptance of

4

Although only one count was charged in the indictment, the guidelines consider each

separate victim as a separate “group” for purposes of offense-level calculation. U.S.S.G. §

2G2.1(d)(1). In this case, the PSR did not proceed beyond two groups because two were enough

to put the defendant’s combined adjusted offense level at 46 and his final offense level at 43,

which is the maximum level available under the guidelines. Had the PSR considered all fifty

children, five levels would have been added rather than two (the grouping ceiling is fixed at 5

levels regardless of the number of offenses), which would have given Irey a combined adjusted

offense level of 49 and a final offense level of 46.

5

The Presentence Report pointed out that under § 2G2.1 cmt. n.6, “[a]n upward

departure may be warranted because the offense involved more than ten minors.” No upward

departure was requested by the government or applied by the district court, probably because it

11

responsibility and an additional level under § 3E1.1(b) for timely notification of

intent to plead guilty. Subtracting those three levels from the 46 produced a final

offense level of 43.

Because Irey had no prior convictions his criminal history category was I.

Even with that category an offense level of 43 produces an advisory guidelines

imprisonment range of life. The statute under which he was convicted, however,

carries a statutory maximum of 30 years. See 18 U.S.C. § 2251(c). As a result, the

guidelines “range” became 360 months (30 years); there was no spread—the top

and bottom of the range were the same. See U.S.S.G. § 5G1.1(a) (“Where the

statutorily authorized maximum sentence is less than the minimum of the

applicable guideline range, the statutorily authorized maximum sentence shall be

the guideline sentence.”).

Neither party objected to the calculation of the guidelines range. In his

sentencing memorandum, Irey’s counsel stated: “Mr. Irey does not object to the

Probation Officer’s advisory guideline calculations and does not seek a downward

departure from the guideline range described in the PSR.” Irey did, however, ask

for a sentence below the guidelines range of 30 years. The statute requires a

minimum sentence of 15 years. See 18 U.S.C. § 2251(c). Irey’s sentencing

would not have made any difference since the adjusted offense level and criminal history score

worked out to a guidelines imprisonment range of life even without an upward departure.

12

memorandum argued that “[a] sentence of 15–20 years in prison, followed by a

substantial term of supervised release” should be imposed.

The government filed a sentencing memorandum arguing that “[i]f this case

is atypical, it is because of aggravating, not mitigating, factors,” and it urged the

court to impose a sentence equal to the guidelines range and statutory maximum of

30 years. The government told the court that it “should give great weight to the

findings of Congress . . . that departures should be extremely rare in child sex

crime cases” because of the seriousness of those crimes. It specifically argued that

any variance based on Irey’s “diminished capacity, aberrant behavior, or family

ties and responsibilities” would result in an unreasonable sentence. The

government also pointed to precedent establishing that a guidelines sentence may

be appropriate even where, in the government’s words, the defendant’s

“psychological evaluation [had] found that he was not a significant risk to children

or likely to molest children in the future.” See United States v. Scott, 426 F.3d

1324, 1327, 1330 (11th Cir. 2005).

In anticipation of the argument that Irey’s actions were “not purely

volitional,” the government argued that Irey “has not shown that his mental

condition is outside the heartland of similar cases” and cited two of our decisions

in support of that proposition. See United States v. Caro, 309 F.3d 1348, 1353

13

(11th Cir. 2002) (“[M]ost people who collect a sizeable amount of child

pornography are in someway addicted to collecting it.”); United States v. Miller,

146 F.3d 1281, 1285 (11th Cir. 1998) (“Nor would poor impulse control be

unusual [for a collector or purveyor of child pornography], regardless of whether it

stemmed from an impulse control disorder. . . . An impulse control disorder is not

so atypical or unusual that it separates this defendant from other defendants.”).

Acknowledging that Irey may have “rationalized his crimes against children by

failing to perceive the harm he was inflicting,” it argued that “is not so uncommon

as to take this case out of the heartland.” In regard to the possibility that Irey, as a

pedophile, may have “experience[d] self-deceptive thought processes,” the

government emphasized that he “has horribly sexually abused numerous children

over a period of years.” The government’s sentencing memorandum concluded by

arguing that “any variance under 18 U.S.C. § 3553(a) would be unreasonable

because there is nothing unusual about the nature or circumstances of this offense

or the defendant’s personal characteristics.”

B. The Reports of the Psychiatrist and Psychologist

In connection with sentencing defense counsel hired two experts in the field

of psychology and psychiatry, and he furnished their reports to the court. One of

the reports was from Dr. Fred Berlin, who is board-certified in both general and

14

forensic psychiatry. Although he did not testify at the sentence hearing, his report

is mentioned in the Presentence Report, a copy of it was attached to defense

counsel’s objections to the Presentence Report, and it was discussed by Dr. Shaw,

who did testify at the hearing.

Dr. Berlin reported that Irey “has a psychiatric disorder known as

heterosexual pedophilia,” which means “he experiences a strong sexual attraction

to prepubescent girls; girls who ordinarily are less than thirteen-years-of-age.” Dr.

Berlin stated that Irey was capable of relating intimately to an adult woman, but he

found that Irey “experienced intense sexual cravings for female children as well.”

Irey was “highly sexualized” and admitted to having “engaged in other forms of

sexually disordered behavior with prostitutes (e.g. sadomasochistic acts), and . . .

having viewed images involving bestiality on the Internet.” Nonetheless, Dr.

Berlin asserted that “to the best of my knowledge and belief, he has never coerced

an unwilling person against their will.”6

Dr. Berlin gave his opinion that “a sexual disorder such as pedophilia does

6

In view of the undisputed facts, that statement is astounding. We find it inconceivable

that Dr. Berlin believes impoverished Cambodian children, who are among the most vulnerable

people in the world, willingly submitted to being bound by duct tape and sexually penetrated

orally, vaginally, and anally by a 200-pound adult male, as well as to having various objects,

including glow sticks, dildos, and cockroaches pushed into their vaginas, while they, in Irey’s

words, “Hurt in Pane.” The only plausible explanation is that Irey was less than forthcoming

with Dr. Berlin about the details of what he had done to those children “many many times” over

at least a four-year period.

15

not develop as a consequence of a volitional decision.” He also stated, however,

that “[a]lthough it is not [Irey’s] fault that he has the disorder, it is his

responsibility to do something about it.” Dr. Berlin thought that Irey needed

professional treatment but he also pointed out that “[e]ven without treatment, in the

past, he had been able to refrain from any sexual contact with children within the

United States.”

Dr. Berlin’s report stated that he had found no evidence to suggest that Irey

was “characterlog[icall]y flawed,” and concluded that he was “not generally anti-

social or psychopathic in his psychological makeup,” nor was he “a man who has

generally lacked a sense of conscience.” Instead, he thought that Irey had often

simply been unable to “readily appreciate the extent of his improprieties” with the

children. Dr. Berlin denied that Irey had “a malicious disregard for the well-being

of the girls in question.” Instead, in his professional opinion, “Mr. Irey did have a

genuine affection and concern for those youngsters at that time” and actually

thought he was helping the little girls he was sexually abusing.7 Dr. Berlin’s view

7

Irey himself probably would disagree with Dr. Berlin’s opinion that he had not fully

appreciated the wrongfulness of his conduct. In a letter he wrote to the district court a week

before sentencing, Irey admitted to having visited the child brothels in Cambodia “many many

times,” even though he knew the girls were minors and that it was wrong, adding “but it was

to[o] late, my sex addiction was now in full control of me.” Later in the letter, Irey said: “I

[had] wanted to stop this insanity for at least 15 years, but I could not. I was sneaking out to

pick up prostitutes, I was leading a double life. I had developed this terrible dark side.”

Dr. Berlin’s theory that Irey had not fully appreciated the wrongfulness of what he was

16

is that, except for the fact that he had spent four or five years raping, sodomizing,

and sexually torturing some of the most vulnerable children in the world, Irey is

“an otherwise decent man.”

Dr. Ted Shaw, a psychologist, was also retained by the defense, and he

submitted a “psychosexual evaluation report” on behalf of Irey. When Dr. Shaw

evaluated Irey on August 23, 2007, Irey was at the Lifestream Behavioral Center in

Leesburg, Florida, “on conditional release from jail.” He was undergoing

treatment for alcohol abuse problems and sexual addiction. According to Dr.

Shaw, a review in May 2007 indicated that Irey “was making appropriate

progress,” although his wife and children “refused to attend personal counseling”

as part of the family sessions.

Irey admitted to Dr. Shaw that he had used prostitutes in this country and in

doing so had contracted a venereal disease, which he passed along to his wife.

Irey had also “experimented with bisexuality” and had “enjoyed consensual

bondage” with adult females. Irey “described a lack of interest in well-endowed

doing to the little children in Cambodia apparently was too much of a stretch for Irey’s defense

counsel. Counsel did argue in his sentencing memorandum that “Irey has been diagnosed as a

pedophile, and had a limited ability to control the behavior supporting the offense of

conviction.” He never argued, however, that Irey had not realized what he was doing was wrong

or failed to appreciate fully the wrongfulness of his criminal conduct. Not in his sentencing

memorandum, or at the hearing, or in his panel brief, or in his en banc brief. More importantly,

the district court never found that Irey had not fully appreciated the wrongfulness of his conduct,

but only that the conduct was not purely volitional and instead was in substantial part due to his

pedophilia.

17

women,” telling Dr. Shaw that “when he married his wife she was thin and had

small breasts,” but “[h]er physique has changed over the years.” Irey admitted

that he had visited child brothels in Cambodia “for the past five years.” He did,

however, lie to Dr. Shaw about some of the details of his sexual abuse of

children.8 Irey acknowledged, though, that the children “suffer the most and are

victims.”

Dr. Shaw’s report noted Irey’s escalating sexual interest over the preceding

ten years, which “could be described as a ‘sexual addiction,’ with many behaviors

and an obsessive fixation which included frequent masturbation, anonymous sex

with prostitutes and the eventual use of brothels in Cambodia.” He described Irey

as “sexually obsessed for at least the last ten years,” and stated his opinion that

“Irey’s paraphilias clearly drove his behaviors, in spite of being an otherwise

moral and responsible individual, upon whom many people, including family,

clients and employees, depended.”

Under one of the risk assessments that Dr. Shaw applied, Irey’s score

“places him in the Medium-Low risk category for sexually re-offending.”

8

Irey told Dr. Shaw that some of the girls he had sex with “were in their early teens, with

the youngest being about twelve.” In fact, as Irey knew and would later acknowledge, the

photographs he made showed that many of the girls were younger than twelve and some were as

young as four years of age. Irey also told Dr. Shaw that he would only have oral sex with the

girls who appeared younger than twelve years of age. However, a photograph Irey made shows

him having vaginal intercourse with a young girl, and “[i]mbedded on the image [in all capitals]

is the phrase: ‘Big Cock Push Bug Deep Into 9 Yo Girl, She Hurt in Pane.’”

18

Another one, the Minnesota Sex Offender Screening Tool-Revised, resulted in a

score that placed Irey in the “Moderate Risk Range.” More specifically, Dr. Shaw

said, “the five-year, ten-year, and fifteen-year recidivism rates for individuals in

the development research study with Mr. Irey’s score are 12%, 14%, and 19%.”

Overall, he reported, “the dynamic and static factors, suggest a moderate to low

moderate risk of a new charge,” which “can be reduced through continued

treatment and informed supervision upon his release.”

C. The Sentence Hearing

The court began the sentence hearing, which was held on January 29, 2008,

by noting that it had reviewed the sentencing memoranda, the presentence report,

and Dr. Shaw’s report. The first witness was Dr. Shaw. He gave his opinion that

Irey has “a long-standing problem with sexual obsession,” and “something like

sexual addiction,” and in American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders (4th ed. text rev. 2000) (DSM-IV TR)

terms, “obsessive-compulsive type disorder, not the full-blown disorder, but with

the sexual behavior being the most prominent feature.” So far as he could tell,

there was not enough evidence to diagnose Irey with any personality disorder. Dr.

Shaw said that Irey is “very low in psychopathy” and explained that “he has this

encapsulated area where he was cheating, where he was lying, where he was

19

violating laws; but outside of that, he was—appears to be—to have been a law-

abiding citizen.”

As for Irey’s risk of sexually abusing children again, Dr. Shaw testified

that: “He’s essentially in the medium low to medium or moderate risk categories,

which is—which is below a threshold of likely.” The risk might be further

reduced with the use of certain drugs, but he was hesitant to recommend that the

court require them given all of their side effects and the fact “that they’re not

always useful.” He also noted that Irey is going to be older “when and if he’s

released, and he’s going to have experienced a reduction naturally in testosterone

and a reduction in sex drive.” Dr. Shaw summed up the risk situation:

So overall, I find him to be, as I said, a moderate risk, a low-

moderate risk, low in psychopathy. He does have—has deviant

interests. Those interests, he himself has been working on reducing

and are likely somewhat reduced already. They are fueled by

obsessive thinking and masturbating and by the sex acts themselves.

The court questioned Dr. Shaw about pedophilia, asking him: “I mean, is it

an illness? I mean, how would you describe that as a mental health professional?”

After noting that Dr. Berlin was on the committee that defined it for purposes of

the DSM–IV TR, Dr. Shaw testified:

I’ll take my shot at it. It is a disorder of sexual interest and

behavior, and you can have the diagnosis with only the interest. So

you could be fascinated, sexually attracted to children and never act

on it, and—but if it troubled you or caused any problems for you, you

20

would still be diagnosable with that disorder, and that is being

attracted to or engaging in behaviors, sexual behaviors, with

prepubescent children.

So it is clearly a well-recognized disorder, and I thought that

Dr. Berlin did a good job of saying that it’s not a disorder that

someone chooses. It’s something that is within you and you have

some tendency towards it.

And frankly and quite sadly, I think the availability of child

images, particularly on the Internet, has fueled an epidemic of

pedophilia that was kind of probably in the background, people might

not have even known that they suffered from it, and then come across

these images. But nonetheless, it is a treatable disorder. So it’s a

disorder that has different origins.

And Mr. Irey talks about how the disorder manifested itself for

him in his being provided with a very young—or very young

prostitutes without asking for them initially; but then he found

himself first repelled but then attracted to them, and that’s that sort of

natural biological disorder part of it that’s different from the moral

and ethical issues.

So for another person, if they had been in the same situation,

they may have been repulsed and stayed repulsed by it and, you

know, not—just said, “Don’t ever do that again and I’m not

interested;” but that led him into a spiral of interest in children

sexually. So that’s the way that it’s manifested itself here.

The district court then remarked that “people accuse me of not knowing

what I’m talking about when I say it’s an illness, and maybe I don’t. That’s why

I’m asking you.” The court continued:

And I guess the question is, from a standpoint of criminology,

is a person who acts out as a result of this condition acting totally of

rational free will or is that person acting out as a result of something

21

that is in essence an illness that he at that point has no control over?

Do you understand what I’m saying?

Dr. Shaw answered:

I do, Your Honor. I think that the fact that pedophilia is not an

underlying element for competency or sanity – it is an Axis I,

treatable disorder. Those of us who have been in the field – I’ve been

in the sex offender field actually since 1976; and there were pioneers

in the field before me, long before me. We have been treating

pedophilia for decades.

It is—I think that the problem that a lot of lay people have is in

distinguishing between people who are disordered, seriously

disordered, and curability versus treatability. Pedophilia is very

treatable, and there are many pedophiles in the community who are

doing just fine and managing their behavior.

As I’m sure you know, probationers, U.S. probationers, are

now subjected to an annual polygraph about whether they are

following the rules of their probationer or whether they are re-

offending. Pedophiles are capable of not re-offending, even if they

have an urge, in the same way that compulsive dessert eaters can

choose to not eat dessert.

They have different levels of struggling, and there are aids to

that: Good supervision, good treatment, replacing those needs with

healthy needs. A lot of treatment is helping people understand the

origin of their disorder and then teaching them to, first of all, be

aware of the danger signs, the risks to relapsing, but at the same time

replacing the way that they were meeting the needs met with the

disordered behavior, meet them in healthy ways; and that’s

something people can be taught. People like Mr. Irey, who’s bright,

who has been successful in business, he can certainly learn the

techniques that we teach to prevent—be responsible himself for

preventing a reoffense.

It’s—I think because we like to say, “You can’t be cured”—in

22

other words, the best long-term treatment is to be alert to the problem

and to—that’s not a cure. Cures, you can forget about it. Just go be

around kids again and don’t worry about it. That, we can’t do.

But there are, you know, thousands of pedophiles and child

molesters, different, out there, in my belief, who aren’t re-offending,

who are in recovery and doing just fine. The new treatments that we

use are, I think, very effective.

On cross-examination, Dr. Shaw confirmed for the record that Irey was “a

pedophile with a sexual interest in children younger than 13, prepubescent

children.” As for Irey’s risk assessment, he conceded the study it relied on was

not confined to pedophiles but also included other sex offenders. Dr. Shaw also

acknowledged that he had not looked at any of the photographs of Irey’s victims

and did not know how many victims there were. When asked if it would surprise

him to know that Irey had sexually molested “over 50 children,” he responded that

it wouldn’t because Irey “did admit that he had become more and more obsessed

and was returning to Asia more and more often.”

Other than Dr. Shaw the only people who submitted statements for, or

testified at, the sentence hearing did so as character witnesses for Irey. Although

they had not been willing to fully participate in family therapy with him, all of

Irey’s immediate family did make statements on his behalf either by video (wife,

daughter, and a son) or in person (two other sons) at the sentence hearing. In his

short video statement, Irey’s youngest son told about his father building a

23

clubhouse and dirt bike track. In her short video statement, Irey’s daughter (age

16) described her father as “loving” and said that he “has taught me how to be

strong, respectful, honorable, loyal, and the list can go on and on.”

In her video statement Irey’s wife of 25 years described him as “a loving

and wonderful husband and father” who is “mindful of other people’s feelings.”

She said that he was a member of the Rotary Club, the Masons, the United Way,

the YMCA, the local theater, the Shriners, and a charity called “Give Kids the

World.” He was so good and kind that he had even rescued and taken in a stray

dog. Indeed, she proclaimed that she had been “very blessed to have been part of

Bill’s life for so many years. He’s taught me so many things.” After watching her

video statement, the district court stated: “I understand that Mr. Irey has been a

good family man and has family support.”

Irey’s oldest son (age 24) testified that his father had taught him “so much

about life and love” and called him “my hero, my star, our father.” His middle

son (age 20) testified that Irey had taught him “to stick up for the little guy

because a lot of times nobody else will,” and that Irey did things “to make this

world what we all envision it could be.” A friend of Irey’s testified that Irey had

used his contacts in China to help out the family of that man’s wife in China. He

also added that during his 32 years of law enforcement in New York City he had

24

seen “a lot of bad people and Billy Irey is not one of those people.” Irey’s brother

testified about how Irey, when a senior in high school in 1976, had loaned his coat

to an accident victim, which was typical of his “random acts of kindness,” and

how if someone was in need, you could count on him.

No one was more effusive in his praise of Irey than his nephew. He

recounted how his uncle had helped get him a computer for college, had listened

to him talk about his aspirations, and had helped others over the years. He

proclaimed that Irey “had a way of touching people’s lives in a way that I’ve

never seen before,” and “bring[ing] out the best in every single person that he

meets.” Irey is, in his view, “the most spirited and the most giving person” and

“overall is just one of a kind.” He even said that: “I like to think that when God

created Uncle Bill, He took a step back and He said, ‘I’m really going to like this

one.’”

At the conclusion of the evidence, defense counsel argued that a sentence to

the statutory maximum of 30 years would be “greater than necessary for Mr. Irey

in light of the mitigation that’s been presented.” He assured the court that he was

not trying to minimize “the gravity of the acts with which Mr. Irey is charged,”

but argued that they were “a compartmentalized area of his whole being that is a

result of his pedophilia.” He argued that Dr. Shaw’s testimony and Dr. Berlin’s

25

report established that “the behavior of a pedophile is not totally volitional, that is,

it is dictated in some degree by the disease itself.” He also argued that Irey had

“lived, other than this disease and this addiction, an exemplary life.” Counsel

cited three decisions, two from this Court and one from the Eighth Circuit, which

affirmed sentences below the guidelines range in cases involving defendants

convicted of distributing child pornography over the internet.9

Counsel told the court that if Irey were sentenced to the 30-year guidelines

range sentence he would be 81 years old when he got out.10 Instead of that

sentence, counsel asked the court to impose one of “between 15 and 20 years here

with up to lifetime supervised release.” Counsel asserted that a 15- or 20-year

sentence “would make him 66 or 71 when he got out, if he served the entire

9

The decisions cited were United States v. McBride, 511 F.3d 1293 (11th Cir. 2007),

United States v. Gray, 453 F.3d 1323 (11th Cir. 2006), and United States v. White, 506 F.3d 635

(8th Cir. 2007). In none of those cases did the defendant actually produce the child pornography

he distributed. And there is no indication that the acts depicted in the pornography involved in

those three cases even came close to the depraved nature of the acts graphically depicted in

Irey’s pink wall series.

10

That statement is not entirely accurate. Under 18 U.S.C. § 3624 federal inmates

routinely receive 54 additional days credit toward the service of their sentence at the end of each

year that they have served with good behavior (with the credit for the last year or part thereof

being prorated and credited within the last six weeks of the imprisonment). Because of § 3624

Irey could complete a 30-year sentence in 26 years and 2 months, and he would be 76 years old

when released, not 81. See 18 U.S.C. § 3624; 28 C.F.R. §§ 523.20, 541.13 (2005); see also

Barber v. Thomas, 130 S.Ct. 2499 (2010).

26

sentence.”11

After defense counsel made his argument, the court asked if Irey wanted to

say anything. In brief remarks, Irey apologized to “the government agents that

have had to get involved in my horrible deeds,” to “the federal attorney’s office,”

to the court, “to the children that I have harmed over the last several years of

going to Cambodia,” to his family, and to “my employees, that I’ve pretty much

hurt them.” He also said: “I’ve hurt a lot of people and I can’t undo that, but I

can learn from that and I’m willing to learn.”

The AUSA then argued in favor of the advisory guidelines range sentence

of 30 years. She reminded the court that Irey “is not being prosecuted for being a

pedophile; he’s being prosecuted for the acts that he committed.” She argued that:

“As an alcoholic does not have to drive a car, a pedophile doesn’t have to put

themselves in a brothel in Cambodia, which this defendant did for years and years

and years, Your Honor.”

The AUSA reminded the district court that the description of Irey’s conduct

in the Presentence Report included: “writing filth on children’s bodies, inserting

11

The “if he served the entire sentence” condition is important, because Irey would not

have to serve his entire sentence unless he behaved so badly in prison that he did not qualify for

the § 3624 additional credit for good behavior. See supra note 10. Assuming good behavior,

Irey would complete a 15-year sentence in 13 years and 1 month, and be released at age 63; he

would complete a 20-year sentence in 17 years and 5 months, and be released at age 68. See 18

U.S.C. § 3624; 28 C.F.R. §§ 523.20, 541.13 (2005); see also Barber, 130 S.Ct. 2499.

27

objects into them, binding them up and tying them up, treating them—posing

them as trophies, and having several of them engaging in acts with him and with

other children at the same time, [and] this is not run-of-the-mill child pornography

. . . if there is such a thing.” She stressed that this is a production case, and “the

defendant clearly had two different parts of his life going on; but in this one, he

was the star, the writer, the director, and, at the end, a person who ruined, just

absolutely and forever ruined over 50 children’s lives.”

During her argument, the AUSA showed the court photographs of about

fifty of the children taken from Irey’s pink wall series; none of those particular

photos showed any obscene acts or revealed private parts; they did show some of

the children’s faces. She pleaded with the court to “look at these babies’ faces,”

pointing out that “some of these children are four or five, six years old. They’re

babies, Your Honor.” Referring to the child pornography that Irey produced

involving these same children, she pointed out that “[t]heir pictures will forever be

out there online. They will be victimized over and over again . . . . Their lives

can never be the same.”

The AUSA also informed the court that when Irey was caught and the cache

of child pornography he had produced was found on his computer, the National

Center for Missing and Exploited Children contacted law enforcement agencies,

28

which expressed astonishment that “you’ve found the person who produced the

‘pink wall’ series.” The series “was infamous on the Internet, and is turning up

even in cases now, that we’re finding more and more of the pink wall series of

these young children.”

The AUSA also pointed out that “in some of the photographs, the defendant

is smiling as he perpetrates this abuse.” She asked: “How can we square this with

the stories we’ve heard today? How can you treat a dog better than you treat a

human being, a defenseless baby?” Answering her own question, she argued that

“[i]t makes no sense other than there’s something really, really bad about the

defendant.” She also asked the court to consider the offense and victimization,

and argued that “[t]he message we send to people who would do this has to be

considered.” She pointed out that the defendant’s conduct, according to his own

admissions, was “not even just child rape and child molestation, but dealing with

prostitutes, lying when he doesn’t have to,” and stealing. She characterized him

as a person “who lies and steals and hurts other people.”

Focusing on the 1,200 images in the collection of child pornography that

Irey produced, the AUSA argued that there is no better word for it than “torture.”

She pointed out that what Irey did to the small children produced “some of the

most egregious images that the agents have ever seen,” and Irey had been doing it

29

for years and on many occasions and paying up to $1,500 for the rights to use

particular children in any way he wanted.

The AUSA concluded her remarks by asking the court to impose a 30-year

sentence, the maximum the law allowed, in order to do “justice for these children

who cannot plead on their own behalf.”

D. The Sentence Findings and Sentence

The court began its sentencing remarks by stating that sentencing was the

hardest thing it had to do and was “particularly difficult in cases like this.” The

court noted the statutory minimum or floor was 15 years and the ceiling was 30

years, which was also what the court called “the guideline score.” The court

observed that while it was to take into account the guidelines score and consider

that score as a benchmark throughout the analysis of the 18 U.S.C. § 3553(a)

factors, the guidelines are not mandatory; while an important element of the

sentencing calculus, the result of the guidelines calculation is only advisory. The

court then stated that it needed to look at the other § 3553(a) factors on an

individualized basis in order to determine an appropriate sentence for the case.

Because of the importance of the court’s sentence findings and explanation,

we set them out in full:

The first thing I need to do is consider the nature and

circumstances of the offense, and I cannot quarrel with Ms. Hawkins’

30

description of that. The conduct here was horrific. The victims were

numerous and perhaps the most vulnerable of the world’s society. So

I don’t think there’s any question but we’re dealing with here with an

offense that rises to the very top in terms of its seriousness and its

effect on other human beings.

These young children were victims who may never, never

overcome their abuse. I recognize, of course, that Mr. Irey and his

family and friends are also victims here; and society at large is a

victim because, as Dr. Shaw indicated, with every new development

in human history, there seems to come good and bad with it; and with

all the good of the Internet, perhaps one of the bad features of it is

that it has made possible what Dr. Shaw describes as an epidemic of

child pornography. And, unfortunately, we here in the court system

witness that and have to deal with it; and our government, in an effort

to deal with it, has imposed—has criminal penalties, very harsh

sentences for conduct like this.

So in terms of the characteristics of the offense, the seriousness

of it itself, the long-standing, long-term engagement in it certainly

does not mitigate in favor of any leniency.

But next I need to look at the history and characteristics of the

defendant. By all accounts, Mr. Irey has been a good husband and

father for his wife and children and a good friend to his friends and a

good person to his community. The lies and thefts, I think, referred

to by Ms. Hawkins were essentially part of his effort to cover up his

illness, because I think other than the acts of Mr. Irey, there’s no

indication that he has engaged in any other sort of criminal conduct

or conduct representing poor character.

Also, in terms of the characteristics of the defendant, I think

we’re just beginning to learn what pedophilia is and how to deal with

it. I think if you look at the reports of the mental health people here

and into the literature, which I have done, Mr. Irey’s acts that bring

him here today, I think it’s safe to say, were not purely volitional. I

think they were due in substantial part to a recognized illness. And

while it does not excuse his conduct and he will still be held

31

accountable for it, I think it would be inappropriate to ignore that

fact.

I also think it’s appropriate to credit the opinion of the mental

health professionals who indicate that Mr. Irey is pursuing treatment

and is doing so apparently successfully and, in the view of the mental

health professionals, is treatable and has a low risk of recidivism.

Of course, all of that is somewhat academic because by the

time he gets out of prison, he’ll be most likely at an age where

recidivism would be unlikely, just from a physiological standpoint.

Mr. Irey obviously has a very loving family, and I know he’s

proud of his family and deserves whatever credit he should take for

having produced these people who have come here today to speak for

him. And I know it was difficult for the family, but I think that your

support is important and says a lot, not only about your family, but

about Mr. Irey himself.

Another aspect of the defendant’s character, as I have alluded

to, of course, not his character but his individual characteristics, is his

age. As I indicated, even the minimum sentence here, he’s going to

be an old man. I guess that makes me an old man, but he will

certainly be an older man when he gets out of prison; and that’s, I

think, a factor to take into account.

There are other aspects of the statute that essentially are

subjective in nature. Of course, adequate deterrence to criminal

conduct. I mean, a serious sentence is hopefully going to deter others

from conducting similar affairs, although when we’re dealing with an

illness like this, I’m not sure that that rationally follows. But,

nevertheless, deterrence is an appropriate consideration, and a stiff

sentence is in keeping with the seriousness of this offense.

As far as protecting the public from further conduct of this

defendant, for the reasons I’ve indicated, I think that militates against

a 30-year sentence, given his age, given the fact that he apparently

recognizes now, from everything I’ve seen, he recognizes the

32

condition that has led him to commit these acts and to put himself

and his life and his family’s life in the order that it is. He’s taken the

first step toward rehabilitation and appears to be amenable to

treatment and also, according to the mental health professionals, is of

low risk of recidivism. So I don’t think society needs further

protection from him, at least beyond the statutory minimum sentence.

As often happens in these cases, my judgment—and I am a

fallible human being. So what I do is not necessarily right. I just do

the best I can under the circumstances. It comes down to my view of

what promotes respect for the law and provides just punishment.

And here, as indicated, I think that a 30-year sentence, given the

personal factors that I have touched upon, is greater than necessary to

accomplish the statutory objectives.

On the other hand, in light of the seriousness of the crimes, I

think a sentence above the mandatory minimum is called for.

So having said all that, it’s the judgment of the Court that the

defendant, William Irey, is committed to the custody of the Bureau of

Prisons to be imprisoned for a term of 210 months.

Upon release from imprisonment, Mr. Irey, you’ll be placed on

supervised release for a term of life. The mandatory drug testing

requirements of the Violent Crime Control Act are imposed. While

on supervised release, you must comply with the standard conditions

adopted by this court.

In addition, I’m going to require you to participate in a

substance abuse program and to follow your probation officer’s

instructions in that regard. You must also participate in a mental

health program specializing in sex offender treatment and follow

your probation officer’s instructions in that regard as well.

You must register, as appropriate, with any state offender

registration agency and cooperate with your probation officer with

respect to complying with that directive.

33

I’ll impose the standard terms concerning risk control, that is,

no direct contact with minors under 18 without the written approval

of your probation officer, prohibition for possessing, subscribing to,

viewing any video or magazines, literature otherwise depicting

children in the nude or sexually explicit positions. You shall not

possess or use a computer with access to any online service without

written approval of your probation officer.

Also, I’m going to impose a search requirement, that you

submit to a search of your person, residence, place of business or any

other area under your control at a reasonable time and in a reasonable

manner based on any reasonable suspicion by your probation officer

of contraband or evidence violating these terms of supervised release.

You must cooperate with the collection of DNA.

I’m not going to impose a fine. You are ordered, however, to

pay a special assessment of $100, which shall be due immediately.

It’s ordered that you shall forfeit to the United States those

assets identified in your Plea Agreement that are subject to forfeiture.

As indicated, the Court has imposed a sentence below the

applicable guideline sentence for the reasons indicated.

The defendant had no objection to any aspect of the sentence, including the

210-month (17 ½-year) term of imprisonment. On behalf of the United States, the

AUSA objected to the downward variance of 150 months (12 ½ years) as

unreasonable “based on the factors adduced in this record, particularly the

seriousness and long-term nature of the offense.” She characterized the variance

as being “almost half.” The court responded that the sentence was “more like 60

percent of the guideline, not half.”

34

Actually, the sentence of 210 months amounts to 58 percent of the advisory

guidelines sentence of 360 months, or a downward variance of 42 percent from

the guidelines sentence. But, of course, the court could not sentence below the

statutory minimum of 15 years in any event. In light of that, it is also accurate to

say that within the statutorily prescribed range of 15 to 30 years (a spread of 15

years or 180 months), the court imposed a sentence that was 83 percent from the

maximum and only 17 percent above the minimum. As Judge Hill put it, the

district court had “move[d] so far downward from the maximum upper sentencing

limit that he nearly reache[d] the minimum limit.” United States v. Irey, 563 F.3d

1223, 1227 (11th Cir. 2009) (Hill, J., concurring), vacated, 579 F.3d 1207 (11th

Cir. 2009) (en banc).

IV. Our Review of the Reasonableness of the Sentence

The United States appealed, contending that in view of the facts and

circumstances the sentence was unreasonably light, amounting to an abuse of

discretion. A panel of this Court disagreed and affirmed the sentence. Id. After

voting to rehear the case en banc, we directed the parties to brief and argue this

issue: “Is the sentence imposed in this case unreasonable and thereby an abuse of

the district court’s sentencing discretion?”

A. The Scope, Standard, and Importance of Appellate Review

35

1. The Pre-Booker Era

Our review of a sentence that is challenged on substantive grounds is

deferential but still important, as the history of substantive review of federal

sentences indicates. Before the Sentencing Reform Act was enacted in 1984,

there was practically no appellate review of federal sentences, except to ensure

that they did not stray outside of the statutory minimum and maximum. So long

as sentencing judges stayed within the statutory boundaries, they had unbridled

discretion to arrive at any sentence they pleased. See Dorszynski v. United States,

418 U.S. 424, 431–32, 94 S. Ct. 3042, 3047 (1974) (“[O]nce it is determined that

a sentence is within the limitations set forth in the statute under which it is

imposed, appellate review is at an end.”); United States v. Tucker, 404 U.S. 443,

447, 92 S. Ct. 589, 591 (1972) (“[A] sentence imposed by a federal district judge,

if within statutory limits, is generally not subject to review.”). The result,

predictably, was widespread disparity in sentences, a problem that gave rise to a

lot of criticism. See, e.g., S. Rep. No. 98-225, at 38–39 (1983), reprinted in 1984

U.S.C.C.A.N. 3182, 3221–22 (complaining of the “unjustifiably wide range of

sentences” different judges imposed on similarly situated defendants).

One of the leading champions of change was Marvin Frankel, who was

himself a district judge. Frankel described federal sentencing as it then existed as

36

“a non-system in which every judge is a law unto himself or herself and the

sentence a defendant gets depends on the judge he or she gets.” Marvin E.

Frankel, Jail Sentence Reform, N.Y. Times, Jan. 15, 1978, at E21. He proposed a

number of reforms, some of which were similar to what would become the

sentencing guidelines system. See Marvin Frankel, Criminal Sentences: Law

Without Order 113–14 (1972). One of Judge Frankel’s key proposals was that

federal sentences be subject to at least a limited degree of appellate review. See

id. at 75–85. The standard he recommended was abuse of discretion, see id. at

82–84, which he described in these terms:

Correctly understood, the “discretion” of judicial officers in our

system is not a blank check for arbitrary fiat. It is an authority,

within the law, to weigh and appraise diverse factors (lawfully

knowable factors) and make a responsible judgment, undoubtedly

with a measure of latitude and finality varying according to the nature

and scope of the discretion conferred. But “discretionary” does not

mean “unappealable.” Discretion may be abused, and discretionary

decisions may be reversed for abuse.

Id. at 84. The goal of the new system, Frankel explained, was “[s]entencing [that]

would be more just. Like cases would tend to be treated alike,” because “[t]he

most fundamental of our legal principles—‘equal justice under law’—demands

that this be so.” Frankel, Jail Sentence Reform, at E21; see also Martin v.

Franklin Capital Corp., 546 U.S. 132, 139, 126 S. Ct. 704, 710 (2005)

(“Discretion is not whim, and limiting discretion according to legal standards

37

helps promote the basic principle of justice that like cases should be decided

alike.”). Frankel and other reformers won the debate, although it took a number

of years to enact the necessary legislation and put the new sentencing system in

place.

The legislation was the Sentencing Reform Act of 1984, whose primary

purpose was to channel district courts’ sentencing discretion and reduce disparity

in sentencing. See Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat.

1987 (codified as amended at 18 U.S.C. §§ 3551–3586 (1988) and 28 U.S.C. §§

991–998 (1988)); Mistretta v. United States, 488 U.S. 361, 364–69, 109 S. Ct.

647, 651–53 (1989) (discussing background to the Sentencing Reform Act and the

guidelines). The Act, which became effective on November 1, 1987, created the

Sentencing Commission and gave it the responsibility to develop a system of

sentencing guidelines.

The sentencing guidelines were binding, and district courts were required to

state reasons for imposing a particular sentence. 18 U.S.C. § 3553(b)–(c). A

court could impose a sentence outside the applicable guidelines range only if it

found the existence of an aggravating or mitigating circumstance “of a kind, or to

a degree, not adequately taken into consideration by the Sentencing Commission

in formulating the guidelines.” Id. § 3553(b)(1). In making such a finding, a

38

sentencing court could consider only the guidelines themselves and the policy

statements and official commentaries of the Sentencing Commission. Id. As the

Supreme Court later noted, departures on this basis were rarely available because

“[i]n most cases, as a matter of law, the Commission will have adequately taken

all relevant factors into account, and no departure will be legally permissible.”

United States v. Booker, 543 U.S. 220, 234, 125 S. Ct. 738, 750 (2005).

Restraints on the exercise of discretion by district courts are enforced

through appellate review, and the Sentencing Reform Act of 1984 provided for it.

18 U.S.C. § 3742. Under the Act, a sentence could be appealed on the ground

that: (1) it was imposed in violation of the law; (2) it was imposed as a result of

an incorrect application of the guidelines; (3) the term of imprisonment, fine, or

supervised release was greater than the maximum or less than the minimum

established in the guidelines range; or (4) it was imposed for an offense for which

there is no sentencing guideline and was “plainly unreasonable.” Id. §

3742(a)–(b).

Departures from the guidelines range were reviewed under the third of the

statutorily listed grounds for appeal, see id. at § 3742(a)(3), (b)(3), and the

resulting sentence was vacated if the appellate court determined that it was

“unreasonable” in light of the factors to be considered in imposing a sentence

39

under § 3553(a) and the district court’s stated reasons for the sentence. See

Booker, 543 U.S. at 261, 125 S. Ct. at 765 (quoting the pre-2003 version of 18

U.S.C. § 3742(e)(3) (1994 ed.)). In conducting its review, the court of appeals

accepted the district court’s findings of fact unless they were clearly erroneous,

which was decided only after giving due regard to that court’s opportunity to

judge the credibility of witnesses. 18 U.S.C. § 3742(e) (1994 ed.). The reviewing

court also gave “due deference” to the district court’s application of the guidelines

to the facts. Id.

The district court’s decision to depart from the guidelines was reviewed for

abuse of discretion in a three-step process. See Koon v. United States, 518 U.S.

81, 98–100, 116 S. Ct. 2035, 2047–48 (1996). First, the court of appeals

deferentially reviewed the district court’s determination of whether the facts of the

case took it outside the “heartland” of the applicable guideline. United States v.

Hoffer, 129 F.3d 1196, 1201 (11th Cir. 1997). A case was outside the heartland

only if there was something unusual, either about the defendant or the

circumstances surrounding the crime, that warranted a different sentence. See

United States v. Miller, 146 F.3d 1281, 1284 (11th Cir. 1998). That determination

was made by comparing the facts of the case to the facts of other cases falling

within the heartland of the guidelines. Id. As the second step in reviewing

40

departure decisions the court of appeals determined for itself whether the

departure factor used by the district court “has been categorically proscribed, is

encouraged, encouraged but taken into consideration within the applicable

guideline, discouraged, or not addressed by the [Sentencing] Commission.”

Hoffer, 129 F.3d at 1201. In the third step the appeals court reviewed with

deference the district court’s finding that the factor on which the departure was

based did exist. Id.

In 2003 Congress amended the sentencing statute to provide for closer

review of sentences that were outside the guidelines. Under the amendments a

sentence could be vacated if the departure from the guidelines range was based on

a factor that: (1) did not advance the objectives of sentencing set forth in §

3553(a)(2); (2) was not authorized under § 3552(b); or (3) was not “justified by

the facts of the case.” 18 U.S.C. § 3742(e)(3)(B); Pub. L. 108-21, § 401(d)(1), 117

Stat. 670. The court of appeals made each of those determinations de novo. Id. §

3742(e); see also United States v. Pressley, 345 F.3d 1205, 1209 n.1 (11th Cir.

2003). The 2003 amendments also specified that a sentence must be vacated if it

departed “to an unreasonable degree” from the guidelines range, in light of the §

3553(a) factors and of the district court’s stated reasons for imposing the

particular sentence. Id. § 3742(e)(3)(C). The result was that an outside-the-

41

guidelines sentence could be vacated if it either was based on an impermissible

factor or the degree of departure was unreasonable. A sentence within a correctly

calculated guidelines range, however, was essentially unreviewable as long as the

district court considered the § 3553(a) factors and explained its reasoning. See id.

§ 3553(c).

The 2003 amendments restricted even further the ability of a district court

to depart downward from the guidelines in cases involving sex crimes against

children. In that type of case a court could depart downward only if it found two

things: (1) the existence of a mitigating circumstance that had been “affirmatively

and specifically identified as a permissible ground of downward departure” by the

sentencing guidelines or policy statements, taking into account any amendments

by Congress; and (2) that mitigating circumstance had not been taken into

consideration by the Sentencing Commission in formulating the guidelines range

for that offense. Id. § 3553(b)(2).

The guidelines themselves also sharply limit the permissible grounds for

downward departure in cases of sexual abuse of children, specifically disallowing

departures based on diminished capacity (U.S.S.G. § 5K2.13), aberrant behavior

(id. § 5K2.20), substance abuse (id. § 5K2.22), or family responsibilities and

community ties (id. § 5H1.6). They provide that generally an offender’s age and

42

health are not relevant, except in rare cases where the offender is so elderly and

infirm that home confinement would be an effective alternative to prison. Id. §§

5H1.1, 5H1.4. The guidelines also provide that charitable contributions and a

defendant’s mental and emotional condition generally are not appropriate grounds

for departure. Id. §§ 5H1.11, 5H1.3.

2. The Booker Era

Then came the Booker decision in 2005. In it the Supreme Court held the

sentencing statute unconstitutional insofar as the guidelines were mandatory and

to the extent that they allowed the upper limits of the sentence to depend on facts

that had not been established by a plea of guilty or proven to a jury beyond a

reasonable doubt. Booker, 543 U.S. at 244, 125 S. Ct. at 756. Instead of striking

down the entire guidelines system, the Court salvaged much of it by making the

guidelines advisory rather than mandatory. Id. at 245, 125 S. Ct. at 756–57. The

salvage work required the Court to sever and excise two provisions of the Act: (1)

§ 3553(b)(1), which had required the district court to impose a sentence within the

guidelines range; and (2) § 3742(e), which had set forth the scope and standard of

review of sentences. Id. at 259, 125 S. Ct. at 764. The excision of § 3742(e) left a

gap: § 3742 still created appellate jurisdiction for sentencing review, but with

subsection (e) gone it no longer specified the standard of review.

43

The Supreme Court filled that gap by inferring a standard of review from

“related statutory language, the structure of the statute, and the sound

administration of justice.” Id. at 260–61, 125 S. Ct. at 765 (quotation marks

omitted). Those considerations, as well as “the past two decades of appellate

practice in cases involving departures,” implied “a practical standard of review

already familiar to appellate courts: review for unreasonableness.” Id. (brackets

omitted); see 18 U.S.C. § 3472(e)(3) (1994 ed.).12 The Court reasoned that

appellate courts had ample experience applying the “reasonableness” standard to

sentences outside the guidelines range before the 2003 amendments and to

sentences for offenses not addressed by the guidelines. Booker, 543 U.S. at 262,

125 S. Ct. at 766. The Booker Court saw appellate review of sentences as

important to the new system, because it “would tend to iron out sentencing

differences,” avoiding undue disparity. Id. at 263, 125 S. Ct. at 767.

Section 3553(a) plays a critical role in appellate review of sentences, just as

it does in the initial sentencing decision. Booker instructs us that not only must

district courts apply the § 3553(a) factors in making their sentencing decisions,

12

The “related statutory language” and “the two decades of appellate practice” the

Supreme Court drew from did not include provisions added by the 2003 amendments or

experience under them. Because the purpose and effect of those amendments had been “to make

Guidelines sentencing even more mandatory than it had been,” the amendments were tossed onto

the legislation scrap pile with the comment that “the reasons for [them] have ceased to be

relevant.” Booker, 543 U.S. at 261, 125 S. Ct. at 765.

44

but courts of appeals also must apply those same factors in determining whether a

sentence is reasonable. Id. at 261, 125 S. Ct. at 766 (“Those factors in turn will

guide appellate courts, as they have in the past, in determining whether a sentence

is unreasonable.”); accord United States v. Pugh, 515 F.3d 1179, 1188 (11th Cir.

2008) (“Booker further held that in performing this review, we must measure

‘reasonableness’ against the factors outlined by Congress in 18 U.S.C. §

3553(a).”); United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per

curiam) (“We must evaluate whether the sentence imposed by the district court

fails to achieve the purposes of sentencing as stated in section 3553(a).”).13

13

Section 3553(a) reads in its entirety:

(a) Factors to be considered in imposing a sentence.--The court shall impose a sentence

sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2)

of this subsection. The court, in determining the particular sentence to be imposed, shall

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;

45

Read in light of earlier decisions, the “reasonableness” standard Booker

adopted entails review for abuse of discretion that accords “substantial deference”

to the district court’s sentencing decisions. Koon, 518 U.S. at 97–99, 116 S. Ct. at

(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—

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28,

United States Code, subject to any amendments made to such guidelines by act of

Congress (regardless of whether such amendments have yet to be incorporated by

the Sentencing Commission into amendments issued under section 994(p) of title

28); and

(ii) that, except as provided in section 3742(g), are in effect on the date the

defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable

guidelines or policy statements issued by the Sentencing Commission pursuant to

section 994(a)(3) of title 28, United States Code, taking into account any

amendments made to such guidelines or policy statements by act of Congress

(regardless of whether such amendments have yet to be incorporated by the

Sentencing Commission into amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title

28, United States Code, subject to any amendments made to such policy statement

by act of Congress (regardless of whether such amendments have yet to be

incorporated by the Sentencing Commission into amendments issued under

section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date the

defendant is sentenced.

(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.

46

2046–47. Pre-Booker decisional law, of course, only applied the reasonableness

standard to sentences that departed from the guidelines range or to sentences for

offenses not addressed in the guidelines. See id. at 98–99, 116 S. Ct. at 2046–47.

After Booker, the abuse of discretion standard outlined in Koon applies more

broadly to the district judge’s sentence decision, whether the sentence is within or

without the guidelines range. See Rita, 551 U.S. at 364, 127 S. Ct. at 2472

(Stevens, J., concurring).

Two years after Booker, the Supreme Court addressed in greater detail the

sentence review function of a court of appeals, leaving no doubt about the

importance of that function. See Rita, 551 U.S. 338, 127 S. Ct. 2456. As we

pointed out at the beginning of this opinion, the opening line of the Rita opinion

categorically states that courts of appeals are to “review federal sentences and set

aside those they find ‘unreasonable.’” Id. at 341, 127 S. Ct. at 2459. And later in

the Rita opinion the Supreme Court explains that, in the world according to

Booker, courts of appeals exist to correct substantively unreasonable sentences

imposed by the district courts. Id. at 354, 127 S. Ct. at 2466–67.

The specific holding of Rita is that a court of appeals may presume that a

sentence within the guidelines range is reasonable. Id. at 347, 127 S. Ct. at 2462.

The Supreme Court believed that such a presumption simply reflects the fact that

47

when both the sentencing judge and the Sentencing Commission have reached the

same conclusion as to the proper sentence, it “significantly increases” the

likelihood that the sentence is reasonable. Id., 127 S. Ct. at 2463. After all, the

Court explained, Congress directed both the Sentencing Commission and the

sentencing judge to carry out the same basic § 3553(a) objectives; the guidelines

themselves reflect application of the § 3553(a) factors, and so should the district

court’s sentencing decision. Id. at 347–48, 127 S. Ct. at 2463. It follows that

when a particular sentence is consistent with the guidelines’ application of the §

3553(a) factors in the “mine run” of cases, it is “probable” that the sentence is

reasonable. Id. at 351, 127 S. Ct. at 2465. If the sentence is not consistent with

the guidelines that same probability does not exist, although the reviewing court

may not presume a sentence that is outside the guidelines is unreasonable, id. at

354–55, 127 S. Ct. at 2467.

The decision in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586 (2007),

illustrates the importance of all the facts and circumstances to the reasonableness

of the sentence. As a sophomore in college Gall had participated in a conspiracy

to distribute ecstasy. Id. at 41, 128 S. Ct. at 591–92. His role was limited to

delivering drugs between conspirators. Id., 128 S. Ct. at 592. Later Gall

voluntarily stopped using drugs himself, and seven months after joining the

48

conspiracy he withdrew from it and told the others he was quitting. Id. Drug free,

Gall graduated from college and became a master carpenter. Id. at 41–42, 128 S.

Ct. at 592. Two years after withdrawing from the conspiracy, Gall was questioned

by federal agents and admitted his participation. Id. Three and a half years after

he had withdrawn from the conspiracy and turned his life around, Gall was

indicted for conspiracy to distribute illegal drugs. Id. He pleaded guilty. Id. His

co-conspirators, who had not withdrawn from the conspiracy, received sentences

ranging from 30 to 36 months. Id. at 54–55, 128 S. Ct. at 599–600.

Gall’s guidelines range was 30 to 37 months. Id. at 43, 128 S. Ct. at 593.

The district court varied downward from that range to a sentence of probation,

largely because Gall had been young and immature when he committed the crime,

he had withdrawn from the conspiracy years before the charges were filed, and he

had made something of himself. Id. at 43–44, 128 S. Ct. at 593. When the

government argued for a guidelines range sentence on the ground that the three

co-conspirators had received sentences in that range, the district court noted that,

unlike Gall, the other conspirators had continued with the conspiracy. Id. at

54–55, 128 S. Ct. at 599–600.

The court of appeals vacated the probationary sentence as unreasonable,

concluding that the district court had erred by giving too much weight to Gall’s

49

voluntary withdrawal, his age at the time of the offense, and his post-offense

rehabilitation, and too little consideration to the need to avoid unwarranted

sentence disparities. Id. at 45, 128 S. Ct. at 594. The Supreme Court reversed that

decision after discussing at some length “the unique facts of Gall’s situation.” Id.

at 54, 128 S. Ct. at 599.

In doing so, the Court reiterated that all sentences, whether within or

without the guidelines, are to be reviewed only for reasonableness under an abuse

of discretion standard. Id. at 46, 128 S. Ct. at 594. It rejected any requirement

that an outside-the-guidelines sentence must be justified by “extraordinary”

circumstances, and rejected any “rigid mathematical formula” that uses the

percentage of departure as the standard for determining the strength of

justification required for a specific sentence. Id. at 47, 128 S. Ct. at 595. At the

same time, however, the Court said that the sentencing court must give “serious

consideration” to the extent of any departure from the guidelines, and must offer

“sufficient justifications” for its conclusion that an unusually harsh or light

sentence is appropriate. Id. at 46, 128 S. Ct. at 594. That means, the Court

explained, that the justification for the deviation from the guidelines range must

be “sufficiently compelling to support the degree of the variance.” Id. at 50, 128

S. Ct. at 597.

50

About appellate review, the Supreme Court held in Gall that “[i]n reviewing

the reasonableness of a sentence outside the Guidelines range, appellate courts

may therefore take the degree of variance into account and consider the extent of a

deviation from the Guidelines,” in addition to the sentencing court’s justifications.

Id. at 47, 128 S. Ct. at 594–95. While rigid mathematical formulas and

proportionality tests cannot be used, the Court concluded that “the extent of the

difference between a particular sentence and the recommended Guidelines range

is surely relevant,” id. at 41, 128 S. Ct. at 591, and that “a major departure should

be supported by a more significant justification than a minor one.” Id. at 50, 128

S. Ct. at 597.14 In other words, the justification for the variance must be

“sufficiently compelling to support the degree of the variance.” Id. Checking to

see that the justification is sufficiently compelling remains the duty of the court of

appeals. At the same time, the appellate court may not presume that a sentence

outside the guidelines is unreasonable and must give “due deference to the district

14

The difficulty of the distinction that the Supreme Court drew in this regard has not

gone unnoticed. See, e.g., United States v. Levinson, 543 F.3d 190, 197 n.6 (3d Cir. 2008)

(noting “[a]s an example of the challenge” in post-Booker sentence review the “somewhat mixed

messages that can be drawn” from Gall’s statement ruling out proportionality but embracing the

requirement of a greater justification for major variances); see also United States v. Feemster,

572 F.3d 455, 467 (8th Cir. 2009) (Colloton, J., concurring) (after Gall, “one searches in vain for

a principled basis on which to conduct a consistent and coherent appellate review for

reasonableness”); United States v. Evans, 526 F.3d 155, 168 (4th Cir. 2008) (Gregory, J.,

concurring) (“I must conclude that the Court has left the specifics of how appellate courts are to

conduct substantive reasonableness review, charitably speaking, unclear.”).

51

court’s decision that the § 3553(a) factors, on a whole, justify the extent of the

variance.” Id. at 51, 128 S. Ct. at 597. The fact that the court of appeals “might

reasonably have concluded that a different sentence was appropriate” is not

sufficient to justify reversal. Id.; see also Talley, 431 F.3d at 788 (“A district

court may impose a sentence that is either more severe or lenient than the sentence

we would have imposed, but that sentence must still be reasonable.”).

In Gall’s case the court of appeals erred by giving “virtually no deference”

to the district court’s decision that a significant variance from the guidelines was

justified. Gall, 552 U.S. at 56, 128 S. Ct. at 600. The Supreme Court decided that

it was entirely reasonable for the district court to give substantial weight to Gall’s

voluntary withdrawal. Unlike all his co-defendants and “the vast majority of

defendants convicted of conspiracy in federal court,” Gall’s efforts at self-

rehabilitation began long before he got caught, which gave the district court

“greater justification for believing Gall’s turnaround was genuine.” Id. at 56–57,

128 S. Ct. at 600–01. It was also reasonable for the district court to conclude that

a guidelines range sentence for Gall would have created unwarranted sentencing

disparities, because his co-conspirators who were sentenced within the guidelines

had not voluntarily withdrawn from the conspiracy and had not shown any

comparable rehabilitation. Id. at 55–56, 128 S. Ct. at 600; see also Lyes v. City of

52

Riviera Beach, 166 F.3d 1332, 1342 (11th Cir. 1999) (en banc) (“[I]t is worth

noting that equal treatment consists not only of treating like things alike, but also

of treating unlike things differently according to their differences.”). The district

court reasonably concluded that under the unusual facts of that case the § 3553(a)

factors “on the whole” justified the below-the-guidelines sentence it imposed on

Gall. Gall, 552 U.S. at 59–60, 128 S. Ct. at 602.

The same day that Gall was released the Supreme Court also issued its

decision in Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007),

which involved sentencing for an “unremarkable drug-trafficking offense” and an

unremarkable firearm possession offense, id. at 110, 128 S. Ct. at 575. Thanks in

large part to the much-criticized 100 to 1 crack/powder cocaine disparity in the

guidelines, the bottom of the advisory range for the combined charges was 19

years. Id. at 92, 128 S. Ct. at 565. After considering all of the § 3553(a) factors

and the strong upward influence of the crack/powder disparity on the guidelines

range, the district court concluded that a 19-year sentence would have been greater

than necessary to accomplish the purposes of sentencing set forth in § 3553(a). Id.

at 92–93, 128 S. Ct. at 565. For that reason, it varied downward to a sentence of

15 years. Id. at 93, 128 S. Ct. at 565.

The government appealed the sentence and the Fourth Circuit reversed

53

solely because of its view that a variance based on disagreement with the

crack/powder ratio in the guidelines was per se unreasonable. Id. After the

Supreme Court granted review, the government argued against the variance on

that same ground. Id. at 101–07, 128 S. Ct. at 570–74. It asserted that while the

guidelines are usually only advisory, the 100 to 1 crack/powder ratio guidelines

were an exception because Congress had directed sentencing courts to follow that

ratio. Id. at 101–02, 128 S. Ct. at 570. The government’s position, in essence,

was that the crack/powder ratio in the offense level part of the guidelines was a

little pocket of mandatoriness in an otherwise advisory system.

The Supreme Court rejected that position, disagreeing with all of the

government’s arguments that Congress had required the Sentencing Commission

and sentencing courts to follow the 100 to 1 ratio in every case. Id. at 102–11,

128 S. Ct. at 570–76. The government did not contend that the below-the-

guidelines sentence was unreasonable for any other reason, and the Court found

that it was reasonable. Id. at 110–11, 128 S. Ct. at 575–76; see also Spears v.

United States, — U.S. —, 129 S. Ct. 840, 843–44 (2009) (per curiam) (clarifying

that Kimbrough means “district courts are entitled to reject and vary categorically

from the crack-cocaine Guidelines based on a policy disagreement with those

Guidelines”).

54

The Kimbrough decision involved a specific part of the guidelines, the one

involving the peculiar crack/powder disparity, which the Sentencing Commission

itself had consistently and emphatically criticized as at odds with the goals behind

§ 3553(a). See Kimbrough, 552 U.S. at 111, 128 S. Ct. at 576; see also Pugh, 515

F.3d at 1189 n.7 (“Kimbrough primarily involved issues related to the guidelines

for crack cocaine offenses.”). The Supreme Court’s opinion in that case, however,

also contains a number of observations of broader application. For example, the

Court discussed “the discrete institutional strengths” of sentencing courts and the

Sentencing Commission, and how those different strengths affect the amount of

respect due a court’s decision to vary from the guidelines range. Kimbrough, 552

U.S. at 109, 128 S. Ct. at 574–75. It said that decisions to vary “may attract

greatest respect when the sentencing judge finds a particular case outside the

heartland to which the Commission intends individual Guidelines to apply.” Id. at

109, 128 S. Ct. at 574–75 (quotation marks omitted). By contrast, “closer review

may be in order when the sentencing judge varies from the Guidelines based

solely on the judge’s view that the Guidelines range fails properly to reflect §

3553(a) considerations even in a mine-run case.” Id., 128 S. Ct. at 575 (quotation

marks omitted). The Court in Kimbrough also reiterated the importance of

appellate review of sentences for substantive reasonableness. See id. at 107–08,

55

128 S. Ct. at 573–74 (explaining that appellate review along with the ongoing

revision of the guidelines “will help to avoid excessive sentencing disparities” and

variations among district courts).

3. The Abuse of Discretion Standard

Since the Supreme Court’s Booker decision it has been “pellucidly clear

that the familiar abuse-of-discretion standard of review now applies to appellate

review of sentencing decisions.” Gall, 552 U.S. at 46, 128 S. Ct. at 594; see also

Pugh, 515 F.3d at 1191 (explaining that the Supreme Court’s teachings “leave no

doubt that an appellate court may still overturn a substantively unreasonable

sentence, albeit only after examining it through the prism of abuse of discretion,

and that appellate review has not been extinguished”). That familiar standard

“allows a range of choice for the district court, so long as that choice does not

constitute a clear error of judgment.” United States v. Frazier, 387 F.3d 1244,

1259 (11th Cir. 2004) (en banc) (quotation marks omitted) (quoting Rasbury v.

I.R.S., 24 F.3d 159, 168 (11th Cir. 1994)). As we have explained, “under the

abuse of discretion standard of review there will be occasions in which we affirm

the district court even though we would have gone the other way had it been our

call. That is how an abuse of discretion standard differs from a de novo standard

of review.” Id. (quoting Rasbury, 24 F.3d at 168); see also, e.g., Ledford v.

56

Peeples, 605 F.3d 871, 922 (11th Cir. 2010) (“[T]he relevant question [when

reviewing for abuse of discretion] is not whether we would have come to the same

decision if deciding the issue in the first instance. The relevant inquiry, rather, is

whether the district court’s decision was tenable, or, we might say, ‘in the

ballpark’ of permissible outcomes.”).

“A district court abuses its discretion when it (1) fails to afford

consideration to relevant factors that were due significant weight, (2) gives

significant weight to an improper or irrelevant factor, or (3) commits a clear error

of judgment in considering the proper factors.” United States v. Campa, 459 F.3d

1121, 1174 (11th Cir. 2006) (en banc). As for the third way that discretion can be

abused, a district court commits a clear error of judgment when it considers the

proper factors but balances them unreasonably. See Ameritas Variable Life Ins.

Co. v. Roach, 411 F.3d 1328, 1330 (11th Cir. 2005) (“[A]n abuse of discretion can

occur . . . when all proper factors, and no improper ones, are considered, but the

court, in weighing those factors, commits a clear error of judgment.” (emphasis

added) (quotation marks omitted)). The principle that discretion can be abused by

unreasonably balancing proper factors is solidly established in Supreme Court

precedent and our circuit law. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S.

235, 257, 102 S. Ct. 252, 266 (1981) (“The forum non conveniens determination

57

is committed to the sound discretion of the trial court. It may be reversed only

when there has been a clear abuse of discretion; where the court has considered all

relevant public and private interest factors, and where its balancing of these

factors is reasonable, its decision deserves substantial deference.” (emphasis

added)); Ford v. Brown, 319 F.3d 1302, 1308 (11th Cir. 2003) (“We conclude that

the district court overlooked some highly relevant factors, and that it ultimately

struck a balance that was an abuse of discretion.”).

In the context of sentencing, the proper factors are set out in 18 U.S.C. §

3553(a), and a district court commits a clear error in judgment when it weighs

those factors unreasonably, arriving at a sentence that does not “achieve the

purposes of sentencing as stated in § 3553(a).” Pugh, 515 F.3d at 1191 (quoting

Talley, 431 F.3d at 788 (quotation marks omitted)). In order to determine whether

that has occurred, we are “required to make the [sentencing] calculus ourselves”

and to review each step the district court took in making it. Id.; see also Booker,

543 U.S. at 261, 125 S. Ct. at 766 (“Those [§ 3553(a)] factors in turn will guide

appellate courts, as they have in the past, in determining whether a sentence is

unreasonable.”); Pugh, 515 F.3d at 1194 (“Indeed, we could not begin to review

the reasonableness of a sentence without examining all of the relevant factors

embodied in Section 3553(a).”).

58

In reviewing the reasonableness of a sentence, we must, as the Supreme

Court has instructed us, consider the totality of the facts and circumstances. Pugh,

515 F.3d at 1192 (unreasonableness of sentence depends “on an examination of

the ‘totality of the circumstances’” (quoting Gall, 552 U.S. at 51, 128 S. Ct. at

597)). To the extent that the district court has found facts, we accept them unless

they are clearly erroneous. Id. At the same time we can and should consider

“additional salient facts that were elicited, and uncontroverted.” Id. The

difference is between contradicting a factfinding, on the one hand, and ignoring

uncontroverted facts that the district court failed to mention on the other. That

difference is important because a district court cannot write out of the record

undisputed facts by simply ignoring them. The failure to mention facts may well

reflect the district court’s judgment that those facts are not important, but the

importance of facts in light of the § 3553(a) factors is not itself a question of fact

but instead is an issue of law. See United States v. Taylor, 487 U.S. 326, 337, 108

S. Ct. 2413, 2419–20 (1988) (“Factual findings of a district court are, of course,

entitled to substantial deference and will be reversed only for clear error. A

judgment that must be arrived at by considering and applying statutory criteria,

however, constitutes the application of law to fact and requires the reviewing

court to undertake more substantive scrutiny to ensure that the judgment is

59

supported in terms of the factors identified in the statute.” (citations omitted)).15

After performing the required analysis, we are to vacate the sentence if, but

only if, we “are left with the definite and firm conviction that the district court

committed a clear error of judgment in weighing the § 3553(a) factors by arriving

at a sentence that lies outside the range of reasonable sentences dictated by the

facts of the case.” Pugh, 515 F.3d at 1191 (quotation marks omitted); accord

United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009); United States v.

McBride, 511 F.3d 1293, 1297–98 (11th Cir. 2007); United States v. Clay, 483

F.3d 739, 743 (11th Cir. 2007). We are not often “left with [that] definite and

firm conviction” because, as we have explained, our examination of the sentence

is made “through the prism of abuse of discretion.” Pugh, 515 F.3d at 1191. But

15

Judge Tjoflat’s separate opinion asserts that it is “deconstructing” the abuse of

discretion standard. Concurring and Dissenting Op. of Tjoflat, J. (hereafter “Separate Op. of

Tjoflat, J.”), at 193; see also id. at 188. It is deconstruction with a wrecking ball. According to

that opinion, the weight given to each piece of evidence is a factfinding, id. at 189; the degree of

seriousness of an offense is a factfinding, id. at 189 n.59; the importance given to each factor is a

factfinding, id. at 190 n.61; the sentence necessary to satisfy each § 3553(a)(2) purpose is a

factfinding, id. at 189; in other words, everything that goes into a sentence is a factfinding

subject only to clearly erroneous review. To the contrary, the Supreme Court has applied the

abuse of discretion standard to the weight the sentencing court has given to the evidence and the

importance it has given to the § 3553(a) factors. See Gall, 552 U.S. at 57, 128 S. Ct. at 600.

Many of the “factfindings” Judge Tjoflat’s separate opinion identifies are actually applications

of statutory law to facts, resulting in a determination that we review for abuse of discretion when

considering whether “the § 3553(a) factors, on the whole, justif[y] the sentence” a district court

has imposed. Id. at 60, 128 S. Ct. at 602. A sentencing decision is a classic “judgment that must

be arrived at by considering and applying statutory criteria,” which “requires the reviewing court

to undertake more substantive scrutiny to ensure that the judgment is supported in terms of the

factors identified in the statute.” Taylor, 487 U.S. at 337, 108 S. Ct. 2413, at 2419–20. And,

contrary to Judge Tjoflat’s opinion, our recognition of the fact that statutory criteria are at play

does not mean that we are reviewing de novo the district court’s balancing of those criteria.

60

sometimes we are. See United States v. Livesay, 587 F.3d 1274, 1278–79 (11th

Cir. 2009) (vacating as “patently unreasonable” a sentence of probation for

participant in billion-dollar fraud scheme and holding that only a “meaningful

period of incarceration” would fulfill the goals of sentencing under § 3553(a));

Pugh, 515 F.3d at 1188–94 (vacating as substantively unreasonable a sentence of

probation for receiving and distributing child pornography); United States v.

Martin, 455 F.3d 1227, 1238–39 (11th Cir. 2006) (vacating a seven-day sentence

for billion-dollar securities fraud as “shockingly short” and “wildly

disproportionate” to the seriousness of the offense, even though the defendant had

rendered substantial assistance that was extraordinary); United States v. Crisp, 454

F.3d 1285, 1290 (11th Cir. 2006) (vacating as “outside the range of

reasonableness” a sentence of five hours’ imprisonment for bank fraud even

though the defendant had provided substantial assistance that was crucial in the

prosecution of his co-defendant). Out of the hundreds of sentences that we have

reviewed up to this point in the five years since the Booker decision, those are the

only four we have found to be substantively unreasonable.

Looking at sentencing decisions through the prism of discretion is not the

same thing as turning a blind eye to unreasonable ones. And, as we said in Pugh,

“the district court’s choice of sentence is not unfettered.” Id. The fetters on a

61

district court’s sentencing discretion are the requirement of reasonableness and the

existence of appellate review to enforce that requirement. While those fetters are

loosened by the substantial discretion we afford district courts in sentencing, at the

boundaries of reasonableness the fetters do fetter. See Frankel, Criminal

Sentences 84 (“‘[D]iscretionary’ does not mean ‘unappealable.’ Discretion may

be abused, and discretionary decisions may be reversed for abuse.”); cf.

Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S. Ct. 2362, 2371 (1975)

(“That the court’s discretion is equitable in nature hardly means that it is

unfettered by meaningful standards or shielded from thorough appellate review.”

(citation omitted)).16

We may not—it bears repeating—set aside a sentence merely because we

would have decided that another one is more appropriate. Gall, 552 U.S. at 51,

128 S. Ct. at 597. See generally Frazier, 387 F.3d at 1259; Ledford, 605 F.3d at

922. A district court’s sentence need not be the most appropriate one, it need only

be a reasonable one. We may set aside a sentence only if we determine, after

giving a full measure of deference to the sentencing judge, that the sentence

16

Although the burden of persuasion may not be decisive in many cases, it is on the party

attacking the sentence as unreasonable. Pugh, 513 F.3d at 1189; Martin, 455 F.3d at 1237;

Talley, 431 F.3d at 788. The burden being there tends to reinforce the discretionary zone in

which the district court acts when it decides on an appropriate sentence, but that zone is neither

limitless nor impervious to review.

62

imposed truly is unreasonable.17

Judge Edmondson’s dissenting opinion argues that in reviewing a sentence

for substantive reasonableness we may not decide whether the district court placed

unreasonable weight on any of the § 3553(a) factors. See Dissenting Op. of

Edmondson, J., at 241 (“[T]o grant something in the record more or less value

than the District Judge did and so to conclude that the record overall weighs more

heavily for a higher sentence . . . oversteps [appellate] authority.”). We disagree

for several reasons.

First, the only authority the dissenting opinion cites for that proposition is

Gall, which actually contradicts it. The Supreme Court decided that Gall’s

sentence was reasonable only after reviewing the weight the district court had

assigned to various factors as well as its decision that the § 3553(a) factors, as a

whole, justified the sentence. See Gall, 552 U.S. at 56–60, 128 S. Ct. at 600–02.

It stated that the district court “quite reasonably attached great weight to the fact

that Gall voluntarily withdrew from the conspiracy after deciding, on his own

17

Some of our colleagues take the position that by finding the sentence in this case

unreasonable we are simply disagreeing with the district judge’s decision and substituting our

own view of a proper sentence for his. See Dissenting Op. of Barkett, J., at 254; Dissenting Op.

of Edmondson, J., at 241, 249; Separate Op. of Tjoflat, J., at 217–21. Of course, the fact that we

find the district court’s sentence unreasonable necessarily means that we disagree with it. That

is true in every instance in which an appellate court finds a sentence substantively unreasonable.

If the appellate court agreed with a sentence it would not find the sentence unreasonable, so it is

illogical to suggest that disagreement with a sentence somehow means that an appellate court is

not properly carrying out its duty to review the reasonableness of the sentence.

63

initiative, to change his life,” which “len[t] strong support to the District Court’s

conclusion that Gall is not going to return to criminal behavior and is not a danger

to society.” Id. at 57, 128 S. Ct. at 601. The Court also stated that the district

court “quite reasonably attached great weight to Gall’s self-motivated

rehabilitation, which . . . lends strong support to the conclusion that imprisonment

was not necessary to deter Gall from engaging in future criminal conduct or to

protect the public from his future criminal acts.” Id. at 59, 128 S. Ct. at 602.18 If

appellate review did not extend to the weight placed on a § 3553(a) factor—as

Judge Edmondson’s dissenting opinion contends—those statements in Gall would

make no sense.19

18

Judge Tjoflat’s separate opinion argues that we are disregarding Gall, an argument that

is based on his reading of that decision to mean that appellate review of the weight put on the

various § 3553(a) factors by the sentencing court is necessarily akin to de novo review of

sentencing, which we may not undertake. See Separate Op. of Tjoflat, J., at 218 (asserting that

one reason for the Supreme Court’s conclusion in Gall that the Eighth Circuit’s analysis “more

closely resembled de novo review” than abuse of discretion review was that the court of appeals

decided that the sentencing court “gave too much weight to Gall’s withdrawal from the

conspiracy” (citation omitted)). That reading of Gall, however, is a misreading of the decision,

which actually confirms that appellate courts, with the proper measure of deference, should

review the reasonableness of the weight placed on a § 3553(a) factor by the sentencing court.

See Gall, 552 U.S. 56–57, 128 S. Ct. at 600–01. The Eighth Circuit’s mistake was not that it had

reviewed the district court’s weighing of the statutory factors, but that in doing so it had asked

the wrong question—whether “in its view” the sentence was appropriate—instead of whether the

district court’s weighing and the resulting sentence were reasonable. Id. at 56, 128 S. Ct. at 600.

19

If an appellate court could not review the reasonableness of the weight the district court

placed on a factor—if all that mattered was correct factfindings and accurate recitation of the

applicable law—many of the Supreme Court’s other statements in its Booker-through-

Kimbrough decisions also would have little or no purpose. See, e.g., Gall, 552 U.S. at 47, 128 S.

Ct. at 594–95 (“In reviewing the reasonableness of a sentence outside the Guidelines range,

appellate courts may therefore take the degree of variance into account and consider the extent of

64

Second, the position that Judge Edmondson’s dissenting opinion takes is

inconsistent with the familiar abuse of discretion standard that the Supreme Court

has told us to apply. As we have already explained, a district court commits a

clear error of judgment, abuses its discretion, when it considers the proper factors

but balances them unreasonably. See Piper Aircraft Co., 454 U.S. at 257, 102 S.

Ct. at 266; Campa, 459 F.3d at 1174; Ameritas Variable Life Ins., 411 F.3d at

1330; Ford, 319 F.3d at 1308. One purpose of reasonableness review is to correct

those errors. If the weight given various factors could not be reviewed on appeal,

there would be no way to serve that purpose. If appellate courts were limited to

determining whether proper procedures were followed and whether factfindings

are clearly erroneous, there would be no substantive review, only procedural

review. See Gall, 552 U.S. at 51, 128 S. Ct. at 597 (defining procedural review to

include a determination of whether the sentence was based on clearly erroneous

facts). We would be back to “a non-system in which every judge is a law unto

himself or herself.” Frankel, Jail Sentence Reform, at E21.

Third, the position that the weight a sentencing court gives to the § 3553(a)

a deviation from the Guidelines.”); Booker, 543 U.S. at 261, 125 S. Ct. at 766 (“Those [§

3553(a)] factors in turn will guide appellate courts, as they have in the past, in determining

whether a sentence is unreasonable.”); Kimbrough, 552 U.S. at 107–08, 128 S. Ct. at 573–74

(explaining that appellate review for reasonableness will help avoid excessive sentencing

disparities). And there would have been no point at all in the Rita decision, which held that we

may presume a sentence within the guidelines is reasonable. 551 U.S. at 347, 127 S. Ct. at 2462.

65

factors may not be reviewed has been rejected not only by this Court but also by

all of our sister circuits that have addressed the issue. See United States v.

Russell, 600 F.3d 631, 633 (D.C. Cir. 2010) (“Substantive reasonableness is the

catch-all criterion under which the reviewing court monitors (deferentially—for

abuse of discretion) whether the district court has given reasonable weight to all

the factors required to be considered.”); United States v. Ressam, 593 F.3d 1095,

1031–32 (9th Cir. 2010) (“[I]t appears that the district court abused its discretion

in weighing the relevant factors by giving too much weight to [the defendant’s]

cooperation and not enough weight to the other relevant § 3553(a) factors,

including the need to protect the public.”); United States v. Camiscione, 591 F.3d

823, 834 (6th Cir. 2010) (“General deterrence is one of the key purposes of

sentencing, and the district court abused its discretion when it failed to give that

matter its proper weight.” (quotation and other marks omitted)); United States v.

Sayad, 589 F.3d 1110, 1118 (10th Cir. 2009) (“Unlike procedural reasonableness

review, which focuses on the permissibility of relying on a particular factor,

substantive reasonableness review broadly looks to whether the district court

abused its discretion in weighing permissible § 3553(a) factors in light of the

‘totality of the circumstances.’” (quotation marks omitted)); United States v.

Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (stating that a sentence is substantively

66

unreasonable if it “does not account for a factor that should receive significant

weight, it gives significant weight to an irrelevant or improper factor, or it

represents a clear error of judgment in balancing sentencing factors”); United

States v. Moore, 565 F.3d 435, 438 (8th Cir. 2009) (“We may find an abuse of

discretion where the sentencing court fails to consider a relevant factor that should

have received significant weight, gives significant weight to an improper or

irrelevant factor, or considers only the appropriate factors but commits a clear

error of judgment in weighing those factors.” (quotation marks omitted)); United

States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en banc) (“At the substantive

stage of reasonableness review, an appellate court may consider whether a factor

relied on by a sentencing court can bear the weight assigned to it.”); United States

v. Goff, 501 F.3d 250, 261 (3d Cir. 2007) (“[D]eterring the production of child

pornography and protecting the children who are victimized by it are factors that

should have been given significant weight at sentencing . . . .”); United States v.

Hampton, 441 F.3d 284, 288–89 (4th Cir. 2006) (vacating sentence as

substantively unreasonable because the district court gave “excessive weight” to

one statutory factor and failed to account for others); see also Torres-Rivera v.

O’Neill-Cancel, 524 F.3d 331, 335–36 (1st Cir. 2008) (stating that, in general,

abuse of discretion may occur if the court “fails to consider a significant factor in

67

the decisional calculus, if it relies on an improper factor in working that calculus,

or if it considers all the appropriate factors but makes a serious error in judgment

as to their relative weight.”). We join those circuits in reaffirming that substantive

review exists, in substantial part, to correct sentences that are based on

unreasonable weighing decisions. If we accepted the position set out in Judge

Edmondson’s dissenting opinion, we would be the only circuit to do so.20

B. The Adequacy of the Sentence Findings and Explanation

Judge Tjoflat’s separate opinion criticizes the district court for not making

more detailed sentence findings and not offering a better explanation for the

sentence it imposed. Separate Op. of Tjoflat, J., at 199, 212–14. Irey’s sentence,

according to that separate opinion, is unreasonable because the district court failed

to make “intelligible” and “specific” findings on the § 3553(a)(2)(A) factors, and

because it did not “explicitly” weigh those factors. Id. at 212–13. About that

criticism, we have four things to say. First of all, the adequacy of a district court’s

findings and sentence explanation is a classic procedural issue, not a substantive

20

Each of the circuits we have cited has determined, at least implicitly, that the weight

given each § 3553(a) factor may be reviewed in a principled fashion, and we agree. Even though

“the appropriate weight given to each of the [§ 3553(a)] factors cannot be calibrated with a slide

rule,” Pugh, 515 F.3d at 1203, that does not mean appellate review of that weight is impossible;

it only reinforces the deferential nature of the review. As we have emphasized, there is “a

difference between deference and abdication.” Crisp, 454 F.3d at 1290. If there were no

difference, if we did not have a meaningful role to play, we would never have set aside any

sentences as substantively unreasonable, but we have.

68

one. See Gall, 552 U.S. at 51, 128 S. Ct. at 597 (explaining that “failing to

consider the § 3553(a) factors, . . . or failing to adequately explain the chosen

sentence,” constitutes procedural error); United States v. Ellisor, 522 F.3d 1255,

1273 (11th Cir. 2008) (Tjoflat, J.). And in this case no one has ever argued that

the district court committed any procedural error in sentencing. That possibility

was not mentioned by either party in the district court, or in their briefs to the

panel, or in the oral argument before the panel, or in the panel’s opinion (which

Judge Tjoflat joined), or in the en banc briefing instructions, or by the parties in

their briefs to us, or at oral argument before us, or anywhere else at all until it

emerged in Judge Tjoflat’s separate opinion. The issue in this appeal has never

been procedural reasonableness, but instead substantive reasonableness. Judge

Tjoflat’s opinion, although purporting to recognize that Irey’s sentence cannot be

vacated on procedural grounds, dresses up its own procedural objections to the

sentence as substantive ones. No amount of rhetorical couture, however, can

cover up the fact that the opinion really is complaining about the procedural

unreasonableness of the sentence, an issue that is not before us.

Second, even if that issue were before us, the district court was not required

to make any more detailed findings or give a more thorough explanation than it

did. In Rita the Supreme Court upheld the adequacy of a “sentencing judge’s

69

statement of reasons [which] was brief but legally sufficient.” 551 U.S. at 358,

127 S. Ct. at 2469. It did so because the record showed that the judge listened to

the evidence and arguments and was aware of the various factors the defendant

put forward for a lesser sentence. Id. In sentencing the defendant the judge did

not say much, and the Court acknowledged that he “might have said more,” but it

surmised that “[h]e must have believed that there was not much more to say.” Id.

Although the judge did not even state that he had considered the evidence and

argument or why he rejected the arguments for a variance, it was enough that “the

context and record” indicated the reasoning behind his conclusion. Id. at 359, 127

S. Ct. at 2469. No member of this Court has ever before indicated that a

sentencing judge is required to articulate his findings and reasoning with great

detail or in any detail for that matter. See, e.g., United States v. Sanchez, 586 F.3d

918, 935–36 (11th Cir. 2009) (Tjoflat, J.) (“In general, the district court is not

required to state on the record that it has explicitly considered each of the §

3553(a) factors or to discuss each of the § 3553(a) factors. It is sufficient that the

district court considers the defendant’s arguments at sentencing and states that it

has taken the § 3553(a) factors into account.” (citation and quotation marks

omitted)); United States v. Brown, 526 F.3d 691, 713 (11th Cir. 2008); Ellisor,

522 F.3d at 1278.

70

Judge Tjoflat’s separate opinion now asserts, however, that he would have

this Court sitting en banc overturn our precedent on the amount of specificity

required of a sentencing judge. Separate Op. of Tjoflat, J., at 186 n.56. While we

as an en banc court can overturn our own precedent, see, e.g., Main Drug, Inc. v.

Aetna U.S. Healthcare, Inc., 475 F.3d 1228, 1230 (11th Cir. 2007), we cannot

overturn Supreme Court precedent. And the Supreme Court has already laid out

the requirements for a sentencing court’s recitation of its reasoning on each of the

§ 3553(a) factors:

[W]e cannot read the statute (or our precedent) as insisting upon a

full opinion in every case. The appropriateness of brevity or length,

conciseness or detail, when to write, what to say, depends upon

circumstances. Sometimes a judicial opinion responds to every

argument; sometimes it does not; sometimes a judge simply writes

the word “granted,” or “denied” on the face of a motion while relying

upon context and the parties’ prior arguments to make the reasons

clear. The law leaves much, in this respect, to the judge’s own

professional judgment.

Rita, 551 U.S. at 356, 127 S. Ct. at 2468. The depth of detail that Judge Tjoflat’s

separate opinion would require exceeds the requirements of that precedent. See

id.; see also id. at 359, 127 S. Ct. at 2469 (“Where a matter is as conceptually

simple as in the case at hand and the record makes clear that the sentencing judge

considered the evidence and arguments, we do not believe the law requires the

judge to write more extensively.”).

71

Third, the district court’s sentence findings and explanation, which we have

set out in full, see supra at 30–34, are far more specific and detailed than we have

seen in the vast majority of other cases where we have reviewed the substantive

reasonableness of sentences. In fact, we cannot recall seeing sentence findings

and explanations that were more specific and detailed than those in this case,

although the substantive reasonableness of the sentence is another matter. We

have never required or expected district judges to compose a doctoral thesis to

explain why they have imposed a particular sentence.

Fourth, the problem with the district court’s sentence findings and

explanation is not that they are unintelligible or lacking in specificity or effort;

instead, the problem is that the sentence is substantively unreasonable. That

unreasonableness is the underlying cause for the Tjoflat opinion’s criticism of the

findings and explanation as not “intelligible,” for its pronouncement that they

“cannot be reconciled” with the sentence, and for its conclusion that in light of

them the sentence is “inconceivable.” Separate Op. of Tjoflat, J., at 210–13. The

reason that the sentence when viewed against the findings is inconceivable,

irreconcilable, and unintelligible is not the fault of the findings but of the sentence

itself. The Tjoflat opinion confuses the unreasonableness of the sentence with an

absence of stated reasons for it, and the impossibility of giving a reasoned basis

72

for the sentence with a lack of effort on the part of the sentencing judge to do so.

We turn now to the task of explaining why, even under the deferential

standard of review that applies, viewing the facts and circumstances of this case in

light of the § 3553(a) factors leads to the conclusion that the downward deviation

sentence the district court imposed in this case is substantively unreasonable.

C. Substantive Unreasonableness

The statutory minimum sentence applicable to this case is 15 years and the

maximum is 30 years. The advisory guidelines range is 30 years, top and bottom.

The district court deviated downward 12 ½ years to a sentence of 17 ½ years,

which is only 2 ½ years above the statutory minimum. The downward variance

was 42 percent.21 Whether considered in absolute or percentage terms, it is a

“major” variance in the legal parlance of sentencing law. See United States v.

Smith, 573 F.3d 639, 660–61 & n.5 (8th Cir. 2009) (requested variance downward

from a 360-month guidelines sentence to one of 240 months, a reduction of 33

percent, would have been “a major variance”); United States v. Abu Ali, 528 F.3d

210, 261 (4th Cir. 2008) (noting that a downward variance of 40 percent to a

sentence of 30 years is “major”); see also United States v. Burns, 577 F.3d 887,

21

As we have already noted, when viewed in terms of the statutorily permissible range of

15 to 30 years, the district court chose a sentence within that range (a spread of 15 years or 180

months) that was 83 percent below the maximum and only 17 percent above the minimum. See

Irey, 563 F.3d at 1227 (Hill, J., concurring).

73

888–90, 896 (8th Cir. 2009) (a variance downward by 60 percent from a 360-

month guidelines sentence to one of 144 months imprisonment is “beyond

dispute” a major one).

Although there is no proportionality principle in sentencing, a major

variance does require a more significant justification than a minor one—the

requirement is that the justification be “sufficiently compelling to support the

degree of the variance.” Gall, 552 U.S. at 50, 128 S. Ct. at 597. The justifications

the district court offered for its major variance downward in sentencing were not

only insufficiently compelling to support the degree of the variance, but they were

also insufficiently compelling to support any variance.

The district court’s clear error in judgment becomes apparent when all of

the facts and circumstances are considered in light of the § 3553(a) factors. What

§ 3553(a) requires is “a sentence sufficient, but not greater than necessary, to

comply with the purposes set forth in paragraph (2)” of that subsection.

Throughout his separate opinion (nineteen times by our count), Judge Tjoflat

refers to the § 3553(a) requirement that a sentence be adequate but not excessive

for the purposes set out in § 3553(a)(2) as “the parsimony principle” or “the

parsimony requirement.” Separate Op. of Tjoflat, J., at 158 & n.21, 159–60, 164,

168, 174–75, 183, 197–98, 203, 209, 222 n.91, 232 n.100. It is a term that has

74

been used in a few other circuits. See, e.g., United States v. Carrasco-De-Jesus,

589 F.3d 22, 29 (1st Cir. 2009) (noting that the appellant “posits that the sentence

violates the parsimony principle of 18 U.S.C. § 3553(a)”); United States v.

Martinez-Barragan, 545 F.3d 894, 904 (10th Cir. 2008) (“[T]he district court must

be guided by the ‘parsimony principle’—that the sentence be ‘sufficient, but not

greater than necessary, to comply with the purposes’ of criminal punishment, as

expressed in § 3553(a)(2).”).

The problem with the parsimony terminology is that the statutory command

has two components of equal standing, and it ignores one of them. The

requirement is not merely that a sentencing court when handing down a sentence

be stingy enough to avoid one that is too long, but also that it be generous enough

to avoid one that is too short. Calling the statutory requirement “the parsimony

principle” is as incomplete and inaccurate as it would be to call the requirement

“the severity principle.” The reason that defense counsel and those who argue for

shorter sentences, either generally or in specific cases, like the term “parsimony

principle” is that it tends to slant the discussion toward shorter sentences by

emphasizing only that part of the twin requirements. But terminology that is less

than completely accurate should not be used to guide judicial decisions.22 A more

22

The term “parsimony principle” is an example of what Holmes once referred to as an

“inadequate catch word[ ],” which could by its “very felicity, delay further analysis.” Oliver

75

accurate term, if one is needed, might be “the Goldilocks principle,” because the

goal is to lock in a sentence that is not too short and not too long, but just right to

serve the purposes of § 3553(a).23 In this opinion, however, we will avoid using a

catchword and simply apply the provision as Congress wrote it. We turn now to

the sentencing factors set out in § 3553(a).24

Wendell Holmes, Law in Science and Science in Law, 12 Harv. L. Rev. 443, 455 (1899).

Judge Tjoflat’s separate opinion says that “[a]lthough the court quibbles with the label

‘parsimony principle,’ it does not disagree with the underlying concept.” Separate Op. of

Tjoflat, J., at 158 n.21. To the contrary, we emphatically disagree with the “parsimony principle”

terminology and the concept that underlies it, which is that one of the two § 3553(a) principles is

to be given predominance over the other. The term “parsimony principle” is an “inadequate

catch word” that stacks the deck and we would prefer to deal with result-neutral terms.

23

Research reveals that this thought has occurred to at least one other judge. See United

States v. Pruitt, 502 F.3d 1154, 1175 (10th Cir. 2007) (McConnell, J., concurring) (“The §

3553(a) factors tell judges, like Goldilocks, not to sentence too high and not to sentence too

low.”), vacated, 552 U.S. 1306, 128 S. Ct. 1869 (2008).

24

Judge Tjoflat’s opinion interprets the statutory language of § 3553(a) to require the

sentencing judge to identify a single “driving purpose,” and then “explain why the driving

purpose subsumes the other purposes.” Id. at 173 n.37; see also id. at 191 (“[T]he (a)(2)

purposes should not be weighed against each other; rather, the [district] court should identify the

(a)(2) purpose that drives the sentence and fashion a sentence parsimonious to that purpose.”);

id. at 190–94 & n.63. Under that novel approach, the driving purpose the sentencing judge chose

would run over all of the other purposes listed in the statute.

The statute directs courts to “impose a sentence . . . [that] compl[ies] with the purposes

set forth” in § 3553(a)(2). 18 U.S.C. § 3553 (emphasis added). The direction is that the

sentence comply with the “purposes” plural; four of them are listed in § 3553(a)(2), and they are

joined by the conjunctive “and,” not by the disjunctive “or.” Id. at § 3553(a)(2)(A)–(D). The

Tjoflat opinion cites no authority for the proposition that courts should pick one “driving

purpose” to speed ahead and flatten the other three.

Not only do we disagree with the approach in Judge Tjoflat’s opinion, but so does the

Supreme Court. In explaining how § 3553(a)(6) directs sentencing courts to consider the need to

avoid unwarranted sentencing disparities, the Court instructed us that “these disparities must be

weighed against the other § 3553(a) factors.” Kimbrough, 552 U.S. at 108, 128 S.Ct. at 574

76

1. Section 3553(a)(1)

The first listed factor—it is actually two factors in one—that a district court

must consider in sentencing, and that a court of appeals must consider in

reviewing the sentence for substantive reasonableness, is “the nature and

circumstances of the offense and the history and characteristics of the defendant.”

18 U.S.C. § 3553(a)(1). To a large extent “the nature and circumstances of the

offense” component of this factor overlaps with the next listed consideration,

which is “the need for the sentence imposed—to reflect the seriousness of the

offense, to promote respect for the law, and to provide just punishment for the

offense,” id. § 3553(a)(2)(A). For that reason, we will postpone some of our

discussion of the nature and circumstances of the offense component of (a)(1)

until we take up the (a)(2)(A) offense-related factor in the next section.

a. The “Victim”

Most of the district court’s reasons for the major variance it imposed relate

to the “history and characteristics of the defendant” component of the § 3553(a)(1)

factor, and it is here where most of the court’s errors in judgment leading to the

unreasonable sentence can be found. To begin with, the district court viewed Irey,

(emphasis added). The Court did not say that the § 3553(a)(6) sentencing disparity factor folds

into the § 3553(a)(2) purposes, and that one of those purposes then becomes the driving purpose

behind the sentence, but instead that all of the § 3553(a) factors are to be weighed against each

other in order to determine the proper sentence.

77

who had raped, sodomized, and tortured fifty underage girls, as himself a victim.

The court said exactly that: “I recognize, of course, that Mr. Irey and his family

and friends are also victims here; and society at large is a victim because, as Dr.

Shaw indicated . . . the Internet . . . has made possible an epidemic of child

pornography.” Dr. Shaw never said that Irey was a victim of the availability of

child pornography on the internet. Nor did Dr. Berlin. Nor did defense counsel.

Nor did Irey himself. The only one who saw Irey as a victim was the district

court.

There are two problems with the district court’s re-casting of the predator as

prey: its factual premise and its legal premise. The problem factually is not with

the court’s explicit finding that the internet “has made possible an epidemic of

child pornography.” No one disputes that. Nor is the problem with the court’s

implicit finding that the availability of child pornography on the internet has

caused some children to be sexually abused by pedophiles who would otherwise

have restrained themselves. In discussing pedophilia generally, Dr. Shaw testified

that the availability of child pornography on the internet “has fueled an epidemic

of pedophilia that was kind of probably in the background, people might not have

even known that they suffered from it, and then come across these images.” So

there is a basis in the record for finding that some pedophiles are excited to action

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by the child pornography on the internet. That is not the factual problem.

The factual problem is, instead, with the district court’s implicit finding that

child pornography on the internet caused Irey, the only defendant before the court,

to sexually abuse children. We know that it did not, and we know that from no

less of an authority than Irey himself. In a letter he wrote to the district court a

week before sentencing, Irey stated that he did not start viewing child

pornography on the internet until after he had begun having sex with the little girls

in Cambodia.25 The government has insisted throughout this appeal, however, that

it is not challenging any of the district court’s factfindings, only the court’s

characterizations, its application of law to fact, the weight it assigned to various

factors, and the overall reasonableness of the sentence it imposed. For that reason,

we will not disturb the district court’s clearly erroneous finding that the existence

of child pornography on the internet enticed Irey to sexually abuse children or was

a contributing cause of his doing so, and we will instead accept that finding as a

25

In his letter to the court, Irey stated: “I visited these brothels many many times after

that. I knew that these girls were not 18. But it was to[o] late, my sex addiction was now in full

control of me. After awhile I started to look for child porn on the internet” (emphasis added).

And Dr. Berlin’s report stated that: “Mr. Irey denied any sexual fantasies of children before he

had the sexual experiences in the Cambodian brothels.”

During oral argument before us, defense counsel conceded that Irey’s own statements

negated a finding that he saw child pornography on the internet that enticed him to travel to

Cambodia and have sex with children. Counsel acknowledged it was “correct” that Irey “went to

Cambodia and visited the child brothels first and then after a while he started looking for it on

the internet.”

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given in our analysis.

The more fundamental problem with the district court’s recasting of Irey-

the-criminal as Irey-the-victim is the legal premise behind it, one that suggests the

criminal is like his victims. Irey is the wrongdoer, the predator, the victimizer.

The little girls in Cambodia are the wronged, the prey, the victims. The district

court should have kept the two separate and not commingled them in its thinking.

Child molesters and the children who are their victims do not occupy the same

moral plane or position or anything resembling it. A man who sexually violates

little children is no more entitled to be considered a victim of child pornography

on the internet than a defendant who rapes an adult woman is entitled to be

considered a victim of sexually provocative images on television. The victims in

this case are the underage girls, some as young as four years old, whom Irey

violated for his own perverse pleasure, filming that violation for distribution

worldwide. Suggesting that Irey, like those little children, was a victim is absurd.

Even defense counsel refused to defend it before us.26

26

During oral argument, defense counsel was asked these questions and gave these

answers:

Q. What about his factfinding that Irey himself was a victim? What supports that?

A. Judge, I think that his statement in that regard is unfortunate and I think it was in

direct response to Dr. Sh—

Q. You don’t defend that statement do you?

A. I do not.

The first quoted question in that exchange, above, labeled the district court’s statement a

factfinding, but it was not. Calling Irey a victim is a characterization, not a finding of fact.

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The district court’s view of Irey as a victim permeated its reasoning and

tainted its weighing of the § 3553(a) factors, including (a)(1), which is “the nature

and circumstances of the offense and the history and characteristics of the

defendant.” The nature of an offense would tend to seem less morally outrageous

if the one who committed it were himself a victim. And if the characteristics of

the defendant include being a victim, he is naturally more sympathetic than

otherwise.

b. The “Illness” of Pedophilia

Along these same lines, the district court insisted on describing Irey as

suffering from the “illness” of pedophilia, while the two defense experts

described it as a “treatable disorder.”27 The district court found that because he

suffered from pedophilia: “Mr. Irey’s acts that bring him here today, I think it’s

safe to say, were not purely volitional. I think they were due in substantial part to

a recognized illness. And while it does not excuse his conduct and he will be held

accountable for it, I think it would be inappropriate to ignore that fact.”

The record does not support the district court’s finding that because he is a

pedophile Irey could not much help raping, sodomizing, and sexually torturing

27

Under the DSM IV TR, pedophilia is a paraphilia and an Axis I disorder. Other

examples of Axis I paraphilia disorders include voyeurism, exhibitionism, fetishism, frotteurism,

transvestic fetishism, sexual masochism, and sexual sadism. DSM IV TR at 566–67.

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little children, posing them as trophies, and smiling while he did it. The record

actually contradicts that finding. Dr. Berlin reported: “Although it is not his fault

that he has the disorder [of pedophilia], it is his responsibility to do something

about it.” It could not be Irey’s responsibility to do something about his

pedophilia if he lacked the volitional capacity to do something about it. One is

responsible for doing something only if one has the ability to do something about

it. Both experts agreed that pedophilia was treatable. What Irey could have done

about his pedophilia is seek treatment for it. He never once sought treatment for

his pedophilia, which was part of what he described as his “terrible dark side,”

during the four or five years he was sexually abusing little children “many many

times.” Like most criminals, Irey stopped only when he got caught.

Not only that, but as Dr. Berlin noted, “[e]ven without treatment, in the

past, [Irey] had been able to refrain from any sexual contact with children within

the United States.” The undisputed fact is that Irey was perfectly capable of not

sexually abusing children where the risk of detection and punishment was high,

which is why he consciously chose to commit his crimes against children halfway

around the globe in a third world country where there was little or no risk from

law enforcement. Irey’s self-restraint when it was in his own best interest not to

indulge his lust for children proves that his volition was not impaired to any extent

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worthy of weight in sentencing.

During the sentence hearing, the district court asked Dr. Shaw: “is a person

who acts out as a result of this condition acting totally of rational free will or is

that person acting out as a result of something that is in essence an illness that he

at that point has no control over?” Dr. Shaw refused to endorse the court’s

pedophiles-can’t-much-help-it theory. Instead, he gave his expert opinion that

while pedophilia is not curable, it is treatable and pedophiles can and many do

avoid molesting children. Dr. Shaw stressed that “Pedophilia is very treatable,

and there are many pedophiles in the community who are doing just fine and

managing their behavior.” He later reiterated that there are “thousands of

pedophiles and child molesters, different, out there, . . . who aren’t re-offending,

who are in recovery and are doing just fine.” The “many pedophiles in the

community” could not be doing “just fine” and the “thousands of pedophiles . . .

out there” could not be avoiding commission of offenses if, as the district court

believed, the “illness” of pedophilia rendered the criminal acts of those who

molest children “not entirely volitional.” See generally Bruce J. Winick, Sex

Offender Law in the 1990s: A Therapeutic Jurisprudence Analysis, 4 Psychol.

Pub. Pol’y & L. 505, 524 (1998) (“People diagnosed with pedophilia do not

molest children in the presence of police officers or in other situations presenting

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a high likelihood of apprehension. Rather, they act with stealth, deception, and

premeditation in an effort to avoid detection. This is purposeful, planned, and

goal-directed conduct, not spontaneous and uncontrollable action or action that is

substantially beyond the individual’s ability to avoid.”); id. at 523–24 (“There is

nothing in the diagnostic criteria for pedophilia or any of the other paraphilias that

suggests that individuals diagnosed with these disorders suffer from any cognitive

impairment that affects their ability to understand the wrongfulness of their

conduct or that renders them irrational in any respect or unable to control their

actions. . . . Moreover, there is nothing in the clinical literature that suggests that

sex offenders are unable to exercise self-control.”).

The district court refused to acknowledge the line that both of the defense

experts drew between pedophilia and child molestation—a line, as the AUSA

argued, that is similar to the one between alcoholism and driving under the

influence. Dr. Shaw attempted to explain to the court metaphorically the

difference between having the urge and acting on the urge: “Pedophiles are

capable of not re-offending, even if they have an urge, in the same way that

compulsive dessert eaters can choose to not eat dessert.” The district court did not

heed the metaphor or the experts’ reports or the testimony of Dr. Shaw, but

instead reasoned that because pedophiles have the urge they have diminished

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volition when it comes to resisting the urge.

We would recognize this finding as clear error if the government had

argued the point to us. Since it did not, we will accept as a fact, for this case only,

the erroneous finding that when pedophiles molest children they are not acting in

a “purely volitional” way but instead their crimes are “due in substantial part” to

their pedophilia.28

That finding, which we assume correct for this case, is relevant to the §

3553(a)(1) factor concerning “the nature and circumstances of the offense and the

history and characteristics of the defendant.” But the assumed fact cannot

reasonably carry much weight. Not “purely volitional” does not mean not

volitional, and “due in substantial part” does not mean due, period. The district

court did not find that Irey could not help committing the crimes, which he

committed “many many times” over a period of four or five years. Perhaps the

reason the court stopped short of finding Irey could not help it at all is that Irey

28

Judge Tjoflat’s separate opinion accuses us of using the reports we have cited to hold

that the district court clearly erred in finding that pedophiles are not acting in a “purely

volitional” way when they sexually abuse children. Separate Op. of Tjoflat, J., at 221 & n.89. In

doing so that opinion ignores the fact that Dr. Shaw, whom the opinion describes as Irey’s “‘star’

witness,” id. at 204, was himself careful to distinguish between pedophilia and child molestation,

a distinction that the district court insisted on blurring. More fundamentally, Judge Tjoflat’s

separate opinion also disregards our clear statement, to which this footnote is attached, that

because the government has not contested the point, we are accepting as a fact for purposes of

this case the finding that when pedophiles molest children they are not acting in a “purely

volitional” way but instead their crimes are “due in substantial part” to their pedophilia.

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obviously did help it when doing so suited his purpose of not getting caught.

While in this country Irey refrained from committing any crimes against children,

never once touching an American child in an inappropriate way, and instead

consorted with adult prostitutes. It was while in Cambodia, where he could get

away with sexually violating children, that he did it so “many many times.” And

he acted with cunning. As Judge Hill put it:

I also disagree with the apparent weighty consideration that the

sentencing judge gave to the notion that this defendant acted on

account of some type of “sickness.” The defendant acted

deliberately, cunningly and with obvious delight. He ruined the lives

of at least forty-three children (that we know of) and then published

his triumphs on the internet for all the world to see, complete with

scurrilous black marker writings tattooed on the nine-year-old girls’

skin.

Irey, 563 F.3d at 1227 (Hill, J., concurring).

Moreover, the “history and characteristics of the defendant” component of

the § 3553(a)(1) factor is aimed at distinguishing among defendants who commit a

particular offense or type of offense. The theory of the district court’s finding,

however, is one of non-distinction because it applies to virtually everyone who

commits this type of crime. According to the district court’s theory,

pedophiles—not Irey in particular but pedophiles in general—share the

characteristic of having impaired volition when it comes to sexually abusing

children. They all have what the district court insisted on calling the “illness” of

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pedophilia. If the sexual molestation of children by pedophiles is not “entirely

volitional,” as the district court found and as we are assuming, then most sexual

abuse of children is not “entirely volitional,” because most of it is done by

pedophiles. See Ryan C.W. Hall & Richard C.W. Hall, A Profile of Pedophilia:

Definition, Characteristics of Offenders, Recidivism, Treatment Outcomes, and

Forensic Issues, 82 Mayo Clinic Proc. 457, 458 (2007) (“An estimated 88% of

child molesters and 95% of molestations (one person, multiple acts) are

committed by individuals who now or in the future will also meet criteria for

pedophilia. Pedophilic child molesters on average commit 10 times more sexual

acts against children than nonpedophilic child molesters.” (footnotes omitted)).

This point is important because it matters whether the reason for the

variance is a fact that takes the present case outside the heartland of cases covered

by the individual guideline. The Supreme Court instructed us in Kimbrough that

decisions to vary “may attract greatest respect when the sentencing judge finds a

particular case outside the heartland to which the Commission intends individual

Guidelines to apply.” Kimbrough, 552 U.S. at 109, 128 S. Ct. at 574–75

(quotation marks omitted); see also Rita, 551 U.S. at 351, 127 S. Ct. at 2465 (the

guidelines themselves foresee that they are not to apply to cases outside the

heartland of cases). The Court stated that, by contrast, “closer review may be in

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order when the sentencing judge varies from the Guidelines based solely on the

judge’s view that the Guidelines range fails properly to reflect § 3553(a)

considerations even in a mine-run case.” Kimbrough, 552 U.S. at 109, 128 S. Ct.

at 575; see also Spears, 129 S. Ct. at 843 (“[Kimbrough’s] implication was that an

‘inside the heartland’ departure (which is necessarily based on a policy

disagreement with the Guidelines and necessarily disagrees on a ‘categorical

basis’) may be entitled to less respect.”).

The district court’s reliance on the theory that pedophiles have reduced

volition, applying as it does to virtually all crimes involving sexual abuse of

children, does not take this case outside the heartland to which the Commission

intended the guidelines relating to sexual offenses against children to apply.

Instead, the pedophiles-are-ill variance is more properly seen as a variance based

on the judge’s view that the guidelines range for crimes involving the sexual

abuse of children does not properly reflect § 3553(a) factors even in mine-run

cases, i.e., in the vast majority of cases. For that reason, as Kimbrough teaches,

the decision is not entitled to the “greatest respect” but instead should be subject

to “closer review.” Exercising that closer review, we reject as unreasonable and a

clear error in judgment the district court’s view that the guidelines involving sex

crimes against children are too harsh in a mine-run case because pedophiles have

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impaired volition. The reasons should be apparent but, if not, we refer the reader

to our upcoming discussion about the devastating and permanent harm that this

type of crime inflicts on its young victims. See infra at 98–102; see also Garcia v.

Quarterman, 456 F.3d 463, 471–72 (5th Cir. 2006) (capital case) (“The second

error in Garcia’s argument is the suggestion that pedophilia may be considered

‘mitigating’ of a defendant’s moral culpability. No case has so held. . . . There is

no sense in which reasonable people could view Garcia’s pedophilia as morally

mitigating of guilt, any more than reasonable people would find a defendant’s

uncontrollable compulsion to commit incest or eat human flesh ‘mitigating.’”),

vacated on other grounds, 257 Fed. App’x 717 (5th Cir. 2007).

c. Husband, Father, and Member of the Community

While considering the “the history and characteristics of the defendant”

component of § 3553(a)(1), the district court also weighed in Irey’s favor his

status as a family man and member of the community:

By all accounts, Mr. Irey has been a good husband and father

for his wife and children and a good friend to his friends and a good

person to his community. The lies and thefts, I think, referred to by

Ms. Hawkins were essentially part of his effort to cover up his

illness, because I think other than the acts of Mr. Irey, there’s no

indication that he has engaged in any other sort of criminal conduct

or conduct representing poor character.

That is unreasonable and a clear error in judgment on several different levels.

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To begin with, the judge’s reasoning is like saying that other than the fact

he had an “illness” that made him want to kill young women, Ted Bundy was a

pretty nice guy and a valuable member of his community. That not only could

have been said about Bundy, but something like it actually was said. See Ann

Rule, The Stranger Beside Me 33–34 (2000) (describing how the author worked

beside Bundy at a crisis clinic with a suicide prevention line, where Bundy served

the community well: “If, as many people believe today, Ted Bundy took lives, he

also saved lives. I know he did, because I was there when he did.”). The district

court’s reasoning is also like saying that but for his taste for human flesh and how

he satisfied it, Jeffrey Dahmer was not so bad. See Lionel Dahmer, A Father’s

Story 47 (1994) (describing how Jeffrey Dahmer had helped rescue a baby bird

that had fallen from the nest and had nursed it back to health).

By the simple expedient of assuming away or putting out of mind all the

criminal acts that they have committed, one may describe many, if not most,

criminals as good people without “any other sort of criminal conduct or conduct

representing poor character.” Irey did not merely slip up and commit one criminal

act. He persistently flew halfway around the world on a regular basis for four or

five years and “many many times” raped, sodomized, and sexually tortured

helpless children. And he recorded his sexual abuse and debasement of the little

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children in photographs and videos for his own personal enjoyment and to share

with others. No one who commits such heinous crimes has good character

regardless of whether the criminal, while he was not raping, sodomizing, and

torturing helpless children, was a good father, or husband, or member of his local

community (as distinguished from the world community). It was unreasonable

and a clear error in judgment to vary downward for Irey on the theory that he has

good character. See Martin, 455 F.3d at 1239–40 (disapproving the sentencing

court’s emphasis on the defendant’s lack of a criminal record and the aberrational

nature of his crimes, which the guidelines had already taken into account, and

pointing out that his criminal conduct spanned a period of years and caused much

harm).

The Fourth Circuit had a somewhat similar situation before it in United

States v. Abu Ali, 528 F.3d 210, 258–59 (4th Cir. 2008), where the sentencing

court in a case involving attempted terrorism had varied downward from a

guidelines range sentence of life to a sentence of 30 years after considering,

among other things, the many letters it had received “describing Abu Ali’s

‘general decent reputation as a young man’ and his overall ‘good character.’” Id.

at 268. Vacating the 30-year sentence as unreasonably lenient, the Fourth Circuit

was “unmoved” by those letters, explaining:

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What person of “decent reputation” seeks to assassinate leaders of

countries? What person of “good character” aims to destroy

thousands of fellow human beings who are innocent of any

transgressions against him? This is not good character as we

understand it, and to allow letters of this sort to provide the basis for

such a substantial variance would be to deprive “good character” of

all its content.

Id. Likewise here. What person of good character commits the horrific crimes

that Irey did against at least fifty different children and on “many many”

occasions over a four- or five-year period, stopping only when he is finally

caught? What the Fourth Circuit said applies as well to this case and what Irey

did: “This is not good character as we understand it.” If Irey is a person of good

character, the term has no meaning worth mentioning.

The facts about Irey as a husband, father, and member of the community

are not disputed, the question is how to weigh them for sentencing purposes. The

uncontroverted facts are that as a husband Irey had been cheating on his wife with

prostitutes for the past 15 years, which was three-fifths of the 25 years they had

been married. See Pugh, 515 F.3d at 1192–93 (considering beyond the sentence

findings “these additional salient facts that were elicited, and uncontroverted, at

the sentencing hearings”); see also Gall, 552 U.S. at 51, 128 S. Ct. at 597 (the

appellate court “will, of course, take into account the totality of the

circumstances”). He did it on a weekly basis while he was in Orlando, his

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hometown. Because of Irey’s immoral conduct, he contracted a venereal disease

and passed it on to his wife. He lied to his wife. As a result of Irey’s depraved

criminal misconduct his family lost their expensive house, their savings, and their

second-generation family business. Irey admitted that because he had spent so

much time over the years pursuing sex outside marriage, he spent less time with

his children than he should have: “I was cheating my children out of things like

taking them to the parks or a basketball game, because I had to go pick up a

prostitute.” In view of those uncontroverted facts, no significant weight can be

given to Irey’s having been “a good husband and father for his wife and children.”

Irey lied not just to his wife but to others as well. As he put it, “I would lie

to people even when I did not need to.” He stole from

This text is long and has been trimmed here. Open the source document for the complete record.