United States v. Merced

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-1844

UNITED STATES OF AMERICA,

Appellant

v.

HECTOR MERCED, a/k/a Braveheart

On Appeal from the United States District Court

for the District of New Jersey

District Court No. 2-08-cr-00725-001

District Judge: The Honorable William J. Martini

Argued March 8, 2010

Before: AMBRO, SMITH, and MICHEL * ,

Circuit Judges

(Filed: April 20, 2010)

*

The Honorable Paul R. Michel, Chief Judge of the

United States Court of Appeals for the Federal Circuit, sitting by

designation.

John F. Romano (argued)

George S. Leone

Office of United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102

Counsel for Appellant

Louise Arkel (argued)

David A. Holman

Office of Federal Public Defender

972 Broad Street

4 th Floor

Newark, NJ 07102

Counsel for Appellee

OPINION

SMITH, Circuit Judge.

Hector Merced pleaded guilty to a drug possession charge

and was sentenced to five years of imprisonment. That sentence

was well below the prison term recommended by the Sentencing

Guidelines. The United States appeals, claiming that the District

Court committed procedural errors in determining Merced’s

sentence. We agree with the government. Accordingly, we will

vacate the judgment of sentence and remand for resentencing.

2

I.

On June 27, 2007, Merced sold 49.1 grams of crack

cocaine to an undercover police officer. Merced received

$1,500 from the sale, and expressed willingness to do more

deals in the future. He was arrested on January 14, 2008. He

pleaded guilty to one count of distributing and possessing with

intent to distribute five grams or more of crack cocaine, in

violation of 21 U.S.C. § 841(a) and (b)(1)(B).1 That crime

carries a five-year mandatory minimum sentence. 21 U.S.C. §

841(b)(1)(B).

A pre-sentence report (PSR) was prepared. The PSR

recounted Merced’s extensive criminal history, which included:

• a 1997 conviction for possession of controlled dangerous

substances (“CDS”) – specifically, 41 bags of crack

cocaine and a bag of marijuana – with intent to distribute

within 1000 feet of school property;

• two 1998 convictions for prowling public places;2

• a 1999 conviction for possession of CDS (15 bags of

cocaine) with intent to distribute within 1000 feet of

school property;

1

Thus, the District Court had jurisdiction under 18

U.S.C. § 3231.

2

Merced possessed marijuana on both occasions.

3

• a 2001 conviction for receiving a stolen vehicle;

• a 2001 conviction for possession of CDS (52 bags of

heroin and 8 bags of crack cocaine) with intent to

distribute within 1000 feet of school property; and

• a 2006 conviction for conspiracy to distribute CDS (23

bags of marijuana).

Due to his criminal history, Merced qualified as a career

offender under U.S.S.G. § 4B1.1. That provision applied

because (1) Merced was more than 18 years old when he

participated in the June 27, 2007 crack cocaine deal, (2) his

crime was a controlled substance offense, and (3) he had two or

more prior felony convictions that were controlled substance

offenses. See U.S.S.G. § 4B1.1(a). Merced’s career offender

status increased his offense level to 34, id. § 4B1.1(b); a three-

level reduction for acceptance of responsibility lowered that

level to 31. Id. § 3E1.1. The PSR placed him in Criminal

History Category VI. Id. § 4B1.1(b). His combined offense

level and Criminal History Category yielded an advisory

Guidelines range of 188 to 235 months. Absent the career

offender provision, his base offense level would have been 28,

his adjusted offense level 25, and his Guidelines range 110-137

months.

Both parties filed memoranda before the sentencing

hearing. Merced argued for a below-Guidelines sentence. He

acknowledged that the Guidelines range of 188-235 months had

been correctly calculated, but argued that the resulting

Guidelines sentence was “exceedingly harsh” and not justified

4

under the sentencing factors of 18 U.S.C. § 3553(a).3 His

3

Those factors are:

(1) the nature and circumstances of the offense

and the history and characteristics of the

defendant;

(2) the need for the sentence imposed –

(A) to reflect the seriousness of the

offense, to promote respect for the

law, and to provide just punishment

for the offense;

(B) to afford adequate deterrence to

criminal conduct;

(C) to protect the public from

further crimes of the defendant; and

(D) to provide the defendant with

needed educational or vocational

training, medical care, or other

correctional treatment in the most

effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range

established for –

5

argument was twofold. First, based on Kimbrough v. United

States, 552 U.S. 85 (2007), he attacked the crack cocaine

Guidelines and the career offender provision of § 4B1.1 on

policy grounds. He claimed that because neither reflected the

Sentencing Commission’s “exercise of its characteristic

institutional role,” his Guidelines range, which was a product of

those two provisions, was a “poor touchstone[] in any § 3553(a)

inquiry.” Second, he argued that consideration of the sentencing

(A) the applicable category of

o f f en s e c o m m itte d b y th e

applicable category of defendant as

set forth in the guidelines . . . .

(5) any pertinent policy statement –

(A) issued by the Sentencing

Commission . . . . subject to any

amendments made to such policy

statement by act of Congress . . . .

(6) the need to avoid unwarranted sentence

disparities among defendants with similar records

who have been found guilty of similar conduct;

and

(7) the need to provide restitution to any victims

of the offense.

18 U.S.C. § 3553(a).

6

factors in his specific case counseled in favor of leniency.

Merced claimed that he was a casualty of a “‘perfect storm’ of

discouraging forces: a splintered family, economic struggle, and

an increasingly punitive criminal justice system.” Merced

explained that his life “imploded” at the age of 12, when two ex-

convict uncles moved into his home and got his mother hooked

on crack cocaine. According to Merced, the mother’s addiction

led to domestic strife, and eventually caused Merced’s father to

abandon the family and move to Puerto Rico. Merced claimed

that this troubled childhood pushed him down the wrong path

and led him to a life of criminal activity for which he was not

wholly responsible. Additionally, he asked the court to consider

his strong relationship with his longtime girlfriend and their 10-

year-old son, as well as letters from various family members

attesting to his positive attributes. Merced did not request a

sentence of any particular length, but he argued that even a 10-

year sentence was “simply not necessary” to satisfy the

sentencing goals of § 3553(a).

The government advocated a sentence within the

Guidelines range and urged the court to reject Merced’s

Kimbrough attack on § 4B1.1. It argued that Kimbrough was

inapposite because, unlike the crack cocaine Guidelines at issue

in that case, the career offender provision that dictated Merced’s

recommended sentence reflected not only the Sentencing

Commission’s exercise of its unique institutional role, but also

direct “congressional involvement in the setting of punishment

for certain recidivists.” (A. 53-55, citing 28 U.S.C. § 994(h)).

It further argued that even if the Court accepted Merced’s

argument based on Kimbrough, it should not apply a

replacement ratio less than the 20:1 ratio accepted by the

7

Supreme Court in Spears v. United States, 129 S.Ct. 840, 842

(2009). According to the government, applying that ratio would

generate a Guidelines range of 92 to 115 months, and “any ratio

less than this would result in significant sentencing disparities,

as a defendant who possessed merely an additional .9 grams of

crack [i.e., 50 grams] . . . and had no criminal history

whatsoever, would be subject to a mandatory minimum term of

ten years’ imprisonment, [under] 21 U.S.C. § 841(b)(1)(A).”

Finally, the government turned to the sentencing factors

and argued that each relevant factor weighed in favor of a

Guidelines sentence. It emphasized Merced’s criminal history,

which included at least five drug-related convictions, and the

seriousness of his offense. See 18 U.S.C. § 3553(a)(1)-(2). It

argued that a Guidelines-length sentence was necessary to

protect the public and to deter both Merced and other drug

dealers. See id. § 3553(a)(2)(B)-(C). The government also

contended that a within-Guidelines sentence was necessary to

avoid unwarranted sentencing disparities. See id. § 3553(a)(6).

It argued that Merced’s sentence “should be commensurate to

other career offenders convicted of similar offenses in New

Jersey and across the country.”

The District Court held a sentencing hearing on February

24, 2009. At that hearing, the Court took particular interest in

the application of the career offender provision. All parties

agreed that Merced was eligible for career offender status under

a mechanical application of § 4B1.1. The point of debate was

not Merced’s technical eligibility, but whether the Court should

sentence him within the range generated by applying that

provision. Throughout the hearing, the District Court was

8

obviously wrestling with two competing realities. The first was

that Merced was a 31-year-old career criminal who had not been

deterred by the punishment he received for his prior convictions.

The second was that many of the crimes that brought Merced

within § 4B1.1 were “street level” offenses that the Court did

not consider to be terribly serious. This tension between the

numerosity and the severity of Merced’s crimes led the District

Court to engage in an on-one-hand-on-the-other-hand dialectic

several times during the hearing. For example:

[Merced has] been a repetitive drug – street drug

dealer, okay? He just doesn’t get it. I mean, he’s

been on the street dealing drugs, relatively small

amounts compared to what I often see, but he’s

been doing it repetitively . . . . And it begins at a

very young age, it begins at 19. He’s 31 years of

age now. It begins at 19. A lot of what’s in his

record with the exception of four prior drug

arrests, a lot of it is the type of stuff that you see

with people who are dealing with drugs on the

street level. I’m not minimizing it, but, you know,

public – prowling, public places, a couple of

municipal court violations.

After walking through the specifics of Merced’s criminal

history, the Court returned to this issue. He acknowledged that

“there are career offenders and there are career offenders . . . .

But he hasn’t learned.” In the same vein, the Court later noted

that “we’re talking about a relatively small sale of crack cocaine

at the street level. But it’s his fifth time he’s done this now . . .

. I don’t know when he’s going to wake up.”

9

In the midst of his oral ruminations, however, the District

Court revealed another possible reason for its reluctance to

sentence Merced as a career criminal. The Court told Merced

that he needed to realize that “he can’t make a living like this”

because “another judge might . . . [apply] the career offender

status recommendation . . . . I have a problem with that. I mean,

I kind of reserve career offender status for violent, significant

drug deals, that type of thing, even though the guidelines may

advise that it’s appropriate.” (A. 76, emphasis added.) The

Court did not explain either how it arrived at this personal

sentencing policy, or why it believed that the contrary policies

reflected in the Guidelines were out of line.

During the hearing, the District Court also took note of

several § 3553(a)(1) factors that in its view favored a downward

variance. He observed the relatively small quantity of crack

involved in Merced’s latest offense, the “street level” nature of

Merced’s previous crimes, the fact that Merced “probably [has]

a drug problem himself,” 4 Merced’s troubled childhood, and his

strong relationships with his girlfriend and son. The District

Judge noted that the longest prison term Merced had received

for any of his previous crimes was, at most, four years, and

reasoned that no matter what, he was facing “more [jail time]

than he’s done before.” The government conceded that Merced

was a relatively low-level dealer, and not “the main connect

around here who is bringing in kilos of heroin and coke.” It

emphasized, however, that this was Merced’s sixth drug crime,

4

Merced used ecstacy and marijuana daily, and claimed

that he was addicted to the latter.

10

and remained adamant that Merced deserved a Guidelines

sentence because he had not “learned his lesson” from previous

arrests. The Court was not persuaded: “Looking behind and

looking at his criminal record, which gets into the individual

circumstances of his conduct and his history, it just is an

excessive guideline recommendation, in this Court’s opinion.”

After Merced read a letter to the Court accepting

responsibility for his crime, the District Judge undertook a

formal analysis of the § 3553(a) factors. We reprint this analysis

in full, because just as important as what the Court said is what

it did not say. Specifically, it made no mention of § 3553(a)(6),

“the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct”:

That’s my responsibilit[y] under 3553, to impose

a sentence that’s sufficient but not greater than

necessary. I have to look at the nature of the

circumstances of the offense, and I certainly have

here. The offense before me itself is in all

respects a relatively small offense compared to

what I deal with on drug cases frequently. I’m

not minimizing it, but I have to put it in some

context.

But the history and characteristics of the

defendant. It’s clear, and I’ve said it already, he

hasn’t learned his lesson since he was 19 years

old. He’s had a number of different involvements

and convictions for possession with intent to

11

distribute, mostly in state court, mostly small

amounts, glassine bags, marijuana, crack cocaine.

Clearly, it shows that he’s resorted to being a

street dealer. Maybe not all the time, but when

he’s in need of money. And his biggest sentence

up to now was 30 months to 4 years.

I don’t know if he served – he had 4 years with a

30-month mandatory minimum. I don’t know if

he served more than 30 months or not. But he

still didn’t get it is my problem. And as I’ve said

already, statutorily he’s faced with at least 60

months [here]. I’m not sure that’s going to be

enough time for him to wake up and get it. Okay?

There are some – you know, look, he’s

unfortunately somewhat a product of his

upbringing. You know, it appears that his

upbringing – his parents were drug users and

perhaps even violent; yet, there are some good

things, at least hopeful things about him. He

appears to have – considering his conduct in

terms of being in the streets with drugs, he’s

maintained a consensual union with his girlfriend

for over 12 years. That’s probably the strongest

thing going in his life. He has one child from this

relationship and one child from a previous one.

He says he has a harmonious relationship with

this woman, and he appears to at least attempt to

want to take care of his kids. I don’t see that all

the time in these cases.

12

He says he’s tried to gain employment but he’s

faced obstacles. And, of course, he’s going to face

more obstacles with the stronger criminal record

that he has.

I think a substantial variance is warranted. It’s a

serious crime, but I put it in context looking at his

record. There’s a need to deter others from this

type of street conduct but, you know what?

There’s a need to deter him. And he hasn’t gotten

it yet. And there is some need to protect the

public from people who feel that they can go out

when they are struggling and sell drugs on the

street. I also have a duty not to impose an

unnecessarily harsh and punitive sentence for the

conduct that’s before me, even with the criminal

record I have.

Based on this analysis, the Court sentenced Merced to 60

months in prison. This was the shortest prison term allowable

by statute. It was also 128 months below the bottom of

Merced’s advisory Guidelines range, and 50 months below the

bottom of what that range would have been even in the absence

of § 4B1.1. Later, the Court issued a written Statement of

Reasons (“SOR”) explaining that this variance was based on

the nature and circumstances of the offense and

the history and characteristics of the defendant

pursuant to 18 U.S.C. § 3553(a)(1). The court

finds that a sentence within the career offender

guideline range[] is far greater than necessary to

13

achieve just punishment and that a variance is

appropriate because of the relatively small sale of

crack cocaine[] in the instant offense and the

relatively minor nature of the transactions in prior

qualifying convictions.

The SOR did not mention the need to avoid unwarranted

sentencing disparities, or the Court’s personal policy of applying

§ 4B1.1 only in cases involving “violent, significant drug deals.”

The government appealed the sentence pursuant to 18 U.S.C. §

3742(b). We have jurisdiction under 28 U.S.C. § 1291.

II.

Before the Supreme Court’s decision in Booker, the

federal Sentencing Guidelines were binding on district courts;

they had “the force and effect of laws.” United States v. Booker,

543 U.S. 220, 234 (2005). Booker “held unconstitutional that

portion of the Guidelines that made them mandatory,” United

States v. Rita, 551 U.S. 338, 354 (2007), and replaced the

mandatory regime with one in which the Guidelines are

“effectively advisory.” Booker, 543 U.S. at 245. After Booker,

sentencing courts must “consider the Guidelines range” pursuant

to § 3553(a)(4), but also “tailor the sentence in light of other

statutory concerns” reflected in the sentencing factors of §

3553(a). Id. “[A]ppellate review of sentencing decisions is

limited to determining whether they are reasonable.” 5 United

5

In Rita, the Supreme Court held that courts of appeals

may (but need not) presume that a within-Guidelines sentence

14

States v. Gall, 552 U.S. 38, 46 (2007) (internal quotations

omitted).

“[B]oth the district court’s crafting of an appropriate

sentence and the appellate court’s review of that sentence for

reasonableness must be ‘guided by the factors set forth in 18

U.S.C. § 3553(a).’” United States v. Ausburn, 502 F.3d 313,

327-28 (3d Cir. 2007) (quoting United States v. Cooper, 437

F.3d 324, 327 (3d Cir. 2006)). Reasonableness review proceeds

in two stages, and employs the “familiar abuse of discretion

standard” at each stage. Gall, 552 U.S. at 46. First, we ensure

that the district court committed no “significant procedural

error,” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009)

(en banc), “such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence[.]” Gall, 552 U.S. at 51.

If the district court commits procedural error, our preferred

course is to remand the case for re-sentencing, without going

is reasonable. 551 U.S. at 347. Our Court has declined this

invitation; others have accepted it. Compare United States v.

Cooper, 437 F.3d 324, 331 (3d Cir. 2006), with United States v.

Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006). No court of

appeals, however, may presume that an outside-the-Guidelines

sentence is unreasonable. Rita, 551 U.S. at 354-55.

15

any further. Ausburn, 501 F.3d at 328.6 But if the district

court’s procedures are sound, we proceed to examine the

substantive reasonableness of the sentence. Id. “The touchstone

of reasonableness is whether the record as a whole reflects

rational and meaningful consideration of the factors enumerated

in § 3553(a).” United States v. Grier, 475 F.3d 556, 571 (3d

Cir. 2007) (en banc) (internal quotations omitted).

In Tomko, we held that our substantive reasonableness

inquiry must be highly deferential. 562 F.3d at 568. We

recognized that the sentencing judge, not the court of appeals,

“‘is in a superior position to find facts and judge their import

under § 3553(a) in the individual case. The sentencing judge

sees and hears the evidence, makes credibility determinations,

has full knowledge of the facts and gains insights not conveyed

by the record.’ This means that ‘the sentencing judge has access

to, and greater familiarity with, the individual case and the

individual defendant before him than . . . the appeals court.’” Id.

at 566 (quoting Gall, 552 U.S. at 51-52) (internal citations

omitted). We further recognized that the district court’s superior

vantage point compels us to “‘give due deference to [its]

determination that the § 3553(a) factors, on a whole,’ justify the

sentence.” Id. at 568 (quoting Gall, 552 U.S. at 51).

Accordingly, we held that “if the district court’s sentence is

procedurally sound, we will affirm it unless no reasonable

sentencing court would have imposed the same sentence on that

6

But see United States v. Lychock, 578 F.3d 214, 219-20

(3d Cir. 2009) (finding procedural error yet proceeding to

analyze substantive reasonableness).

16

particular defendant for the reasons the district court provided.”

Tomko, 562 F.3d at 568.

We were careful to note, however, that our adoption of

a deferential standard of review for substantive reasonableness

was “not an exercise in self-abnegation.” Id. at 575. We retain

“an important role . . . in reviewing district courts’ sentencing

decisions.” Id. Chief among our duties in fulfilling this

“important role” is ensuring that district courts follow proper

sentencing procedures. Indeed, the broad substantive discretion

afforded district courts under Tomko makes adherence to

procedural sentencing requirements all the more important.

These procedural requirements exist to “guide the [district

court’s] exercise of discretion,” and failure to observe them may

lead a court to impose a substantively unreasonable sentence.

United States v. Goff, 501 F.3d 250, 256 (3d Cir. 2007)

(describing substantively unreasonable sentence as “the product

of the District Court’s procedurally flawed approach”); United

States v. Lychock, 578 F.3d 214, 220 (3d Cir. 2009) (concluding

that “by ignoring relevant factors and failing to offer a reasoned

explanation for its departure from the Guidelines, the District

Court . . . put at risk the substantive reasonableness of any

decision it reached” (internal quotations omitted)).

“[O]ur post-Booker precedent instructs district courts to

follow a three-step sentencing process.” United States v.

Gunter, 462 F.3d 237, 247 (3d Cir. 2006). First, the court must

correctly calculate the defendant’s Guidelines range. Id.

Second, it must rule on any motions for departures. Id. Finally,

“after giving both parties an opportunity to argue for whatever

sentence they deem appropriate,” Gall, 552 U.S. at 49, the court

17

must “exercise[] its discretion” through “meaningful

consideration to the § 3553(a) factors” before deciding on a

sentence. Cooper, 437 F.3d at 329. While there is “no

mandatory script for sentencing,” Goff, 501 F.3d at 256, the

court’s analysis of the relevant factors must adequately

demonstrate its exercise of “independent judgment” and

meaningful consideration of the relevant sentencing factors.

United States v. Sevilla, 541 F.3d 226, 232 (3d Cir. 2008). The

district court need not make explicit “findings as to each of the

§ 3553(a) factors if the record makes clear that the court took

the factors into account in sentencing.” Cooper, 437 F.3d at

329. It is “not incumbent on the District [Court] to raise every

conceivable relevant issue on [its] own initiative” during

sentencing, Gall, 552 U.S. at 54, nor must the court “discuss

every argument made by a litigant if an argument is clearly

without merit.” Cooper, 437 F.3d at 329. However, if a party

raises a colorable argument about the applicability of one of the

§ 3553(a) factors, the district court may not ignore it. The court

should address that argument as part of its “meaningful

consideration” of the sentencing factors. Ausburn, 502 F.3d at

329 (stating that “the court must acknowledge and respond to

any properly presented sentencing argument which has colorable

legal merit and a factual basis” in the record).

“After settling on the appropriate sentence, [the court]

must adequately explain the chosen sentence to allow for

meaningful appellate review.” Gall, 552 U.S. at 50. In other

words, it is not enough for the district court to carefully analyze

the sentencing factors. A separate and equally important

procedural requirement is demonstrating that it has done so.

Because of the “fact-bound nature of each sentencing decision,”

18

there is no “uniform threshold” for determining whether a court

has supplied a sufficient explanation for its sentence. Tomko,

562 F.3d at 567. In some cases, a “brief” statement of reasons

can be “legally sufficient.” Rita, 551 U.S. at 358. See also

United States v. Lessner, 498 F.3d 185, 203 (3d Cir. 2007)

(finding no procedural error notwithstanding the district court’s

“scant” discussion of the § 3553(a) factors). In others, a longer

explanation may be appropriate. “[T]he record must be

adequate for review, [but] it need not be perfect . . . . [R]eview

in this area is necessarily flexible[.]” Ausburn, 502 F.3d at 328.

In all cases, however, the district court must “set forth enough

to satisfy the appellate court that he has considered the parties’

arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” Rita, 551 U.S. at 356. Stated

another way, the district court must furnish an explanation

“sufficient for us to see that the particular circumstances of the

case have been given meaningful consideration within the

parameters of § 3553(a).” United States v. Levinson, 543 F.3d

190, 196 (3d Cir. 2008). We require this explanation, not

because we distrust district courts or seek to second-guess them,

Tomko, 562 F.3d at 575, but because such an explanation is

necessary and vital to us in performing meaningful substantive

reasonableness review. See Cooper, 437 F.3d at 329

(explaining that “there is no way to review [a court’s] exercise

of discretion” if it “does not articulate the reasons underlying its

decision” (quoting United States v. Johnson, 388 F.3d 96, 101

(3d Cir. 2004))).

The extent of the explanation we require of the district

court may turn on whether the court has varied from the

Guidelines range, and, if it has, on the magnitude of the

19

variance. If the court imposes a sentence outside of the

Guidelines, it “must consider the extent of the deviation and

ensure that the justification is sufficiently compelling to support

the degree of the variance.” Gall, 552 U.S. at 50. While there

is “no mathematical formula” for assessing the adequacy of a

district court’s explanation for a variance, Levinson, 543 F.3d at

196, “a major departure should be supported by a more

significant justification than a minor one.” Gall, 552 U.S. at 50.

See also Levinson, 543 F.3d at 197 (stating that “we may look

for a more complete explanation to support a sentence that

varies from the Guidelines than we will look for when reviewing

a sentence that falls within a properly calculated Guidelines

range); Ausburn, 502 F.3d at 331 n.36 (observing that the

“farther a sentence varies from the advisory guidelines range,

the more compelling the judge’s reasons must be”).

With these principles in mind, we turn to the

government’s specific claims of error in this case.

III.

Significantly, the government does not challenge the

substantive reasonableness of Merced’s sentence. Its claims of

error are entirely procedural. The government claims that the

District Court essentially ignored the advisory Guidelines range,

contrary to § 3553(a)(4); decided to grant a variance before the

government had an opportunity to argue its position; employed

a personal sentencing policy antithetical to congressional and

Sentencing Commission policies, without adequate explanation;

failed to adequately explain the massive downward variance it

granted Merced; ignored the need to avoid unwarranted

20

sentencing disparities, contrary to § 3553(a)(6); and failed to

evaluate the seriousness of Merced’s offense or his criminal

history. Merced argues that the District Court committed no

procedural error, and that the chosen sentence reflects the

Court’s careful analysis of all of the § 3553(a) sentencing

factors.

Most of the government’s claims of error are

underwhelming. In particular, we reject the claim that the

District Court repeatedly interrupted the government at the

sentencing hearing, and would not allow it to present its case.

That accusation is simply not supported by the record. We also

reject the government’s claim that the District Court ignored the

applicable Guidelines range. The Court stated that it had read

the PSR and the parties’ sentencing memoranda, all of which

referenced the correct Guidelines range. The Court

acknowledged the Guidelines range three times during the

sentencing hearing, and correctly adopted that range in its

written SOR explaining the sentence. The record makes clear

that the Court properly considered the Guidelines range as its

“starting point,” Smalley, 517 F.3d at 211, then varied

downward because it viewed that recommendation as excessive

for various reasons.

Finally, we cannot agree that the District Court failed to

adequately consider Merced’s criminal history or the seriousness

of his offense, at least as a procedural matter. As recounted

above, the Court weighed both of those factors extensively at the

sentencing hearing. What the government seems really to be

arguing is that the Court’s choice of sentence did not afford

those factors enough weight. True or not, that is a substantive

21

complaint, not a procedural one. The “district court’s failure to

give [certain] factors the weight [the government] contends they

deserve” does not mean that those factors were not considered.

United States v. Bungar, 478 F.3d 540, 546 (3d Cir. 2007). The

government cannot circumvent Tomko by repackaging a

substantive claim of error as a procedural one. If the

government wanted to argue that no reasonable court could have

sentenced Merced to five years in prison, it should have argued

that no reasonable court could have sentenced Merced to five

years in prison.

With all of that said, two of the government’s claims

have merit. First, we agree that the District Court failed to

adequately explain its apparent policy disagreement with the

career offender provision of § 4B1.1, and what role, if any, that

disagreement played in determining Merced’s sentence.

Second, we agree that the Court failed to explain how the

variance it granted to Merced would not contribute to

unwarranted sentencing disparities. These procedural errors

compel us to vacate Merced’s sentence.

A. Policy Disagreement with § 4B1.1

In the Sentencing Reform Act of 1984, Congress directed

the Sentencing Commission to “assure that the guidelines

specify a sentence to a term of imprisonment at or near the

maximum term authorized” for adult offenders who (1) are

convicted of a felony controlled substance offense or a felony

crime of violence, and (2) have two or more such prior felony

convictions. 28 U.S.C. § 994(h)(1)-(2). See also United States

v. Sanchez, 517 F.3d 651, 662-64 (2d Cir. 2008) (tracing the

22

origins of § 4B1.1). The Commission implemented this

directive in § 4B1.1 of the Guidelines, which prescribes

increased offense levels – and thus, all else equal, harsher

recommended sentences – for “career offenders.” Consistent

with 28 U.S.C. § 994(h), § 4B1.1 provides that a defendant is a

career offender if “(1) the defendant was at least eighteen years

old at the time the defendant committed the instant offense of

conviction; (2) the instant offense of conviction is a felony that

is either a crime of violence or a controlled substance offense;

and (3) the defendant has at least two prior felony convictions

of either a crime of violence or a controlled substance offense.”

U.S.S.G. § 4B1.1(a). It is undisputed that Merced qualifies as

a career offender under this definition.

At sentencing, however, the District Court stated that it

“kind of reserve[s] career offender status for violent, significant

drug deals, that type of thing, even though the guidelines may

advise that it’s appropriate.” We interpret this as an expression

of a policy disagreement with the Guidelines over who should

(or should not) be subject to the enhanced punishment reserved

for recidivists.7 It appears that the Court, while recognizing that

Merced technically qualified as a career offender, thought that

§ 4B1.1 prescribed unduly harsh punishment given the low-level

7

If this interpretation is wrong, the District Court will

have the opportunity to correct us on remand. As a matter of

best practices, of course, a district judge who sentences a

defendant pursuant to a policy disagreement with the Guidelines

should clearly state that he is doing so. This will minimize the

risk that he will be misunderstood by a reviewing court.

23

nature of Merced’s previous crimes. In other words, the Court

seemed to believe, as a matter of policy, that § 4B1.1’s

definition of a career offender is overbroad, and that someone

like Merced with a history of mere street crimes should not be

subject to the same heightened penalties as a criminal engaged

in “violent, significant drug deals.”

A threshold issue is whether district courts may properly

vary from the career offender Guidelines range based on this

sort of policy disagreement. In Spears, the Supreme Court

clarified its decision in Kimbrough and held that “district courts

are entitled to reject and vary categorically from the crack-

cocaine Guidelines based on a policy disagreement with those

Guidelines.” 129 S. Ct. at 843-44. There has been disagreement

as to whether district courts are likewise free to vary from the

Guidelines based on policy disagreements with § 4B1.1. The

First, Sixth and Eighth Circuits hold that they are. United States

v. Boardman, 528 F.3d 86, 87 (1st Cir. 2008); United States v.

Michael, 576 F.3d 323, 327-28 (6th Cir. 2009); United States v.

Gray, 577 F.3d 947, 950 (8th Cir. 2009). Opinions of the

Seventh and Eleventh Circuits have taken the opposite view.

See United States v. Welton, 583 F.3d 494 (7th Cir. 2009),

overruled by United States v. Corner, No. 08-1033, __ F.3d __,

2010 WL 935754 (7th Cir. Mar. 17, 2010) (en banc); United

States v. Vazquez, 558 F.3d 1224 (11th Cir. 2009), vacated by

Vazquez v. United States, __ U.S. __, 130 S.Ct. 1135 (2010)

(mem.). Both Welton and Vazquez held that the principles of

Kimbrough are inapplicable to the career offender provision

because, unlike the crack cocaine Guidelines at issue in

Kimbrough, § 4B1.1 was promulgated pursuant to direct

statutory command. See, e.g., Welton, 583 F.3d at 496-97

24

(citing 28 U.S.C. § 994(h)); Vazquez, 558 F.3d at 1228-29

(same). They reasoned that “the Sentencing Guidelines may be

only advisory for district judges, [but] congressional legislation

is not.” Welton, 583 F.3d at 496-97.8

This reasoning seems to be falling out of favor. In light

of Spears, the government subsequently confessed error in both

Welton and Vazquez. Neither case is good law today.9 We need

not weigh in on this issue, however, because the parties do not

disagree about it. The government concedes that a sentencing

court may vary downward from the Guidelines range generated

by the career offender provision based solely on a policy

disagreement with the scope of that provision. We will proceed

on the assumption that the government’s concession is well-

8

But see Sanchez, 517 F.3d at 663 (concluding that there

is simply “no statutory provision instructing the court to

sentence a career offender at or near the statutory maximum”

because § 994(h) instructs the Sentencing Commission, not

sentencing courts); Michael, 576 F.3d at 327 (“[A] directive that

the Commission specify a particular Guidelines range is not a

mandate that sentencing courts stay within it.”).

9

The Seventh Circuit sitting en banc overruled Welton,

see Corner, 2010 WL 935754 at *3; the Supreme Court vacated

Vazquez at the government’s request. See Vazquez v. United

States, 130 S.Ct. 1135 (2010) (mem.). The Eleventh Circuit has

not yet considered the issue on remand.

25

grounded.10 That assumption, however, is only the beginning of

the inquiry. For even if district courts may choose a sentence at

variance with the range generated by § 4B1.1, they must do so

while following the same procedures that apply in every other

case.

Here, the District Court committed two procedural errors.

First, it never explained its statement that it “kind of” reserved

career offender status for large-scale or violent drug dealers. It

was unclear whether the Court was describing a categorical rule

that it followed in all cases, or an informal rule of thumb that it

applied only in certain cases (perhaps, but not necessarily,

including Merced’s). The Court mentioned its personal

sentencing policy only once, almost in passing, and said nothing

about it at the time it announced Merced’s sentence. Thus, the

extent to which its disagreement with the scope of § 4B1.1

ultimately affected Merced’s sentence remains a mystery. The

Court identified several unrelated mitigating factors that

weighed in favor of a downward variance, such as Merced’s

difficult childhood, his drug problem, his strong relationship

with his longtime girlfriend, and his resolve to take care of his

children. Along the same lines, the Court wrote in the SOR that

it was basing the variance on its assessment of § 3553(a)(1) (the

nature and circumstances of the offense and the history and

characteristics of the defendant). In theory, the entirety of the

10

We can safely do so, of course, because if district

courts lacked the freedom to vary based on policy disagreements

with § 4B1.1, we would decide this case the same way we

decide it today – the sentence would have to be vacated.

26

variance could have been based on those mitigating factors.11

The Court’s stated reluctance to assign career offender status

absent “violent” or “significant” drug offenses could have been

a stray comment, or it could have been central to the choice of

sentence. We cannot tell on this record. The District Court

must do more to “plainly state the reasoning” behind its

sentence. Levinson, 543 F.3d at 197. See also Grier, 475 F.3d

at 571-72 (requiring “a sufficiently detailed explanation” so as

to allow for “effective review”). For that reason alone, we must

vacate the sentence and remand with instructions for the Court

to explain its sentence more clearly.12

11

Indeed, just after the Court revealed its personal

sentencing policy concerning § 4B1.1, it hastened to add that

“I’m not saying by any means the guidelines application here is

inappropriate or not proper . . . . anything I do would be by way

of a variance looking at” the low-level nature of Merced’s

crimes and the fact that Merced had a drug problem. Then

again, the Court also warned Merced that he needed to change

his ways because “another judge” might apply the career

offender Guidelines, thereby implying that this judge had

decided not to apply them. These statements only add to our

confusion as to whether the Court’s policy disagreement with §

4B1.1 informed Merced’s sentence, or whether the variance was

based on Merced’s personal characteristics.

12

The Court’s handling of the § 4B1.1 issue is further

clouded by its conflicting statements about the strength of

Merced’s argument that § 4B1.1 was analogous to the crack

cocaine Guidelines at issue in Kimbrough. At one point, the

27

Second, if the District Court intends to vary downward

based on a policy disagreement with § 4B1.1, it must better

explain and justify that decision. The freedom to vary from the

career offender Guidelines, assuming it exists, is not free. Its

price is a reasoned, coherent, and “sufficiently compelling”

explanation of the basis for the court’s disagreement. Lychock,

578 F.3d at 219. Examination of our precedents reveals that the

District Court’s explanation here fell short of what is required.

In Lychock, the defendant pleaded guilty to possessing

dozens of images of child pornography. The Guidelines

recommended a prison term of 30 to 37 months, but the district

court refused to impose any jail time. The court’s reasoning

rested in part on its view that imprisoning Lychock would

neither protect the public nor deter future child pornography

possession by others. Id. at 216-17. The court explained:

The only benefit I could see [to imprisonment

would be] as a deterrent to others, and that is a

factor . . . . So other people would recognize that

they cannot subscribe to these images with

impunity. I am not persuaded that a jail term for

this defendant warrants, or is to be equated with

Court told Merced’s lawyer that he need not reprise the § 4B1.1

argument made in his memorandum because “I fully understand

your argument . . . . and I buy into it to a large extent.” Later,

however, when the government attempted to refute Merced’s

Kimbrough analogy, the Court said, in reference to Merced’s

argument, “no, no, I’m not buying into that.”

28

that value. The kind of psychological problem in

persons who are drawn to this kind of material it

seems to me is not going to be deterred by a jail

term for an internet porno observer. There is no

suggestion the public otherwise is threatened by

his conduct.

Id. at 217 (alterations in original). We interpreted this

explanation as reflecting a policy disagreement with the

Guidelines, which embodied the reasoned judgment of Congress

and the Sentencing Commission that the goals of sentencing

would be served by imposing jail time on child pornography

consumers like Lychock. Id. at 219. We allowed that such

disagreement was permissible, but only if the court provided a

“sufficiently compelling,” “reasoned explanation for its apparent

disagreement with the policy judgments” reflected by the

Guidelines range. Id. We concluded that the district court’s

justification for its lenient sentence, a mere “conclusory

statement of personal belief” about the benefits vel non of

imprisonment, was insufficient support for its refusal to follow

the policies embodied in the Guidelines. Id. at 220.

13

Accordingly, we vacated the sentence.

We followed similar reasoning in Levinson. There, the

13

As discussed in Section III.B, this failure to explain its

policy disagreement with the Guidelines was not the only error

that led us to vacate the sentence. The district court in Lychock

also failed to consider the need to avoid unwarranted sentencing

disparities pursuant to § 3553(a)(6).

29

defendant was the owner of a failing water cooler business who

engaged in an elaborate fraud to make his company appear

profitable. He ordered employees to shred documents, destroy

electronic records, and create phony sales reports. He also filed

false tax returns which deprived the government of over $40,000

in revenue. Levinson, 543 F.3d at 192. In reliance on

Levinson’s misrepresentations, a parent company, Elkay,

invested millions of dollars in his business. Id. at 191.

Levinson eventually pleaded guilty to wire fraud and filing a

false tax return. He also reached a civil settlement with Elkay.

Id. at 192. The Guidelines recommended a prison term of 24 to

30 months, but the district court imposed probation only. Id. at

192, 194. It reasoned that

[Levinson] put the appearance of prosperity above

his respect for the law. Balanced against this is

the propriety of putting into jail at a substantial

cost to the public a nonviolent offender who poses

little or no threat to the public and whose crimes

had little impact beyond his business partners and

his family. . . . When I look at the costs associated

with putting someone like Mr. Levinson [in] jail

in this day and age compared to the harm he has

caused, which has been resolved amicably with

his business and which certainly will impose even

more harm on his family, I just can’t see that it

makes much sense. I just do not.

Id. at 194 (emphasis added, some alterations in original). We

found this explanation for the court’s substantial downward

variance insufficient, and vacated the sentence. We interpreted

30

the district court’s refusal to imprison Levinson, based on its

view that the cost of imprisonment outweighed its benefits, as

a policy disagreement with the Guidelines. While reiterating

that such “[p]olicy considerations are not off-limits in

sentencing,” id. at 200, we emphasized that sentences influenced

by policy disagreements must be accompanied by a “thorough

explanation” from the court. Id. at 201. The district court’s

bare, unsupported assertion that jail time was too costly to be

worthwhile – simply because Levinson’s fraud was

“white-collar” and directed at a private entity who had been

made whole through a civil settlement – was insufficient to

justify ignoring the “very deliberate policy choices” reflected in

the Guidelines sentence. Id. at 200.

Again, we assume for present purposes that the freedom

district courts enjoy under Kimbrough and Spears includes the

freedom to vary from a career offender Guidelines range based

on a policy disagreement. However, “such disagreement is

permissible only if a District Court provides ‘sufficiently

compelling reasons to justify it.’” Lychock, 578 F.3d at 219

(quoting Gall, 552 U.S. at 50). A “sufficiently compelling”

explanation is one that is grounded in the § 3553(a) factors. The

authors of the Guidelines, no less than district courts, have been

tasked with ensuring that criminal sentences meet the goals of

sentencing set forth in § 3553(a). Rita, 551 U.S. at 348

(explaining that “both the sentencing judge and the Commission

. . . [carry] out the same basic § 3553(a) objectives, the one, at

retail, the other at wholesale.”). Thus, the Guidelines reflect the

Sentencing Commission’s “rough approximation of sentences

that might achieve § 3553(a)’s objectives.” Id. at 350. If a

district court concludes that those objectives are not achieved by

31

a sentence within the career offender Guideline range, and that

belief is driven by a policy disagreement with the career

offender provision, then the court must explain why its policy

judgment would serve the § 3553(a) sentencing goals better than

the Sentencing Commission’s judgments. In doing so, he should

take into account all of the sentencing factors, not just one or

two of them in isolation.14 We require this explanation “so that,

on appeal, we can determine whether the [court’s] disagreement

is valid in terms of the § 3553 factors, the Sentencing

Guidelines, and the perception of fair sentencing.” Lychock,

578 F.3d at 219 (internal quotations omitted).

Here, the District Court’s explanation of its policy

disagreement fell short even of the explanations found wanting

in Lychock and Levinson. In fact, the Court offered no real

explanation at all – only a suggestion as to what its personal

sentencing practices are, in light of that disagreement. If the

District Court has a policy disagreement about the scope of §

4B1.1 – about who should and should not be subject to the

enhanced sentences reserved for recidivists – then it might, in

14

For example, a district judge who distinguishes

between kingpins and street level drug dealers for purposes of

§ 4B1.1 may be furthering the goal of imposing sentences that

reflect “the history and characteristics of the defendant” and “the

seriousness of the offense.” 18 U.S.C. § 3553(a)(1), (2)(A).

Even so, he should also consider whether such a distinction

serves other sentencing goals, such as the need to “promote

respect for the law” and “protect the public from further crimes

of the defendant.” 18 U.S.C. § 3553(a)(2)(A), (C).

32

light of Kimbrough and Spears, permissibly sentence Merced

according to that disagreement. But first, it must provide a

“thorough explanation” of its reasoning. Levinson, 543 F.3d at

201. So far, the District Court has offered little more than a

“conclusory statement of personal belief” that career offender

status should be reserved for violent or large-scale drug dealers.

Lychock, 578 F.3d at 220. This is inadequate, and constitutes

procedural error.

B. Sentencing Disparities

As noted, a district court is not required to recite and

make findings as to every one of the § 3553(a) factors, as long

as the record makes clear that the factors have been considered

in deciding the sentence. Cooper, 437 F.3d at 329. Where one

party raises a colorable argument about the applicability of one

of the factors, however, the court should respond to that

argument as part of its “meaningful consideration of the relevant

statutory factors and the exercise of independent judgment.”

Grier, 475 F.3d at 571-72. One factor the court must consider

is the need to avoid “unwarranted sentencing disparities.” 18

U.S.C. § 3553(a)(6). Its failure to do so in the face of a

colorable argument that an outside-the-Guidelines sentence will

create a risk of such disparities constitutes procedural error.

See, e.g., Lychock, 578 F.3d at 220; Goff, 501 F.3d at 258;

Ausburn, 502 F.3d at 330.

As explained above, in Lychock, the defendant pleaded

guilty to possession of child pornography and his Guidelines

range was 30 to 37 months. The district court sentenced

Lychock to probation and a fine, but declined to impose any jail

33

time. This decision was based in part on its policy view that

imprisoning Lychock would neither protect the public nor deter

child pornography crime, Lychock, 578 F.3d at 216-17, but also

in part on the court’s analysis of several other § 3553(a) factors.

The court acknowledged that Lychock had committed “a serious

offense,” but described him as “basically [a] law-abiding . . .

young man.” Id. at 216. It further noted Lychock’s “cooperation

with law enforcement, his acknowledgment of wrongdoing, his

supportive family, his decision to seek psychological help

immediately, . . . the report of his psychologist that he was

benefitting from their sessions,” id. at 216, and the unlikelihood

that imprisoning Lychock would deter criminal conduct or

protect the public. Id. at 216-17; see also 18 U.S.C. §

3553(a)(2). Nevertheless, we held that the district court “failed

to properly consider the § 3553 factors” and vacated the

sentence. Lychock, 578 F.3d at 218. We found no evidence that

the district court considered the need to avoid unwarranted

sentencing disparities, even though the government had

specifically cited that need in its sentencing memorandum and

pointed out that several defendants caught in the same

investigation that snared Lychock had received sentences within

the Guidelines range. Id. at 219. We emphasized that courts

need not specifically discuss each of the sentencing factors in

every case, nor must they analyze every frivolous argument

advanced by a party in a sentencing proceeding. Id. But we also

reiterated that where “the sentence imposed is ‘far below the

sentences given to similar offenders,’” the risk of disparities

should be analyzed with “particular care.” Id. (citing Goff, 501

F.3d at 256).

Goff unfolded similarly. In that case, the defendant

34

pleaded guilty to possession of child pornography and his

advisory Guidelines range was 37 to 46 months. Goff, 501 F.3d

at 252. Nevertheless, the district court sentenced him to only

four months in prison because it concluded that Goff was, in

many respects, a model citizen. Id. at 253. He had no criminal

history and, in the court’s estimation, “had lived an exemplary

life” before his arrest. Id. The court reasoned that Goff had

committed a “victimless crime,” and that his interest in child

pornography did not necessarily mean that he was a danger to

the community. Id. We vacated the sentence, faulting the

district court for failing to analyze the “‘need to avoid

unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct,’ as

required by § 3553(a)(6).” Id. at 256. We observed that a

defendant caught in the same investigation that led to Goff’s

arrest received 28 months in prison based on a Guidelines range

of 27 to 33 months. Id. at 261. In light of that fact, “discussion

of [§ 3553(a)(6)] should have been undertaken with particular

care,” because Goff’s sentence created “a potential disparity in

sentence for those convicted of child pornography . . . based on

little, if anything, more than [his] luck” in assignment of judge.

Id.

The need to consider the risk of unwarranted disparities

also motivated this Court’s decision in Ausburn. Unlike

Lychock and Goff, which were government appeals of below-

Guidelines sentences, Ausburn involved a defendant’s appeal of

an above-Guidelines sentence. The defendant in Ausburn was

a police officer who engaged in a sexual relationship with a

fourteen-year-old girl whom he had met while responding to a

call at her home. Ausburn, 502 F.3d at 316. When the

35

relationship was discovered, Ausburn was arrested and quickly

pleaded guilty. His Guidelines range was 57 to 71 months. Id.

at 318. He argued for a sentence comparable to that which had

recently been handed down by the same judge in a case called

Kenrick, which also involved a sexual offense against a minor.

He contended that a comparable sentence was necessary to

ensure “the appearance of fairness” and to avoid unnecessary

disparities in sentencing. Id. at 317-18. The district court

rejected his request for leniency. After a cursory recitation of

the § 3553(a) factors, it handed down a sentence of 144 months.

The court explained only that Ausburn had committed a

“serious” offense and that his “position as a law enforcement

officer [made his] violation of the law that much more

unacceptable.” Id. at 320. The court added, “your conduct was

totally unacceptable and you deserve double the number that I

set forth in the Sentencing Guidelines.” Id. at 321. Ausburn’s

lawyer objected, arguing that “this case, as I see it, is very . . .

close to the Kenrick case, where the Court did impose [forty-six]

months.” Id. (some alterations in original). The court

responded that it considered four or even six years to be

insufficient, in light of Ausburn’s abuse of his position as a

police officer. Id. He dismissed Ausburn’s argument that his

sentence should be comparable to the one imposed in Kenrick,

saying that if he didn’t like the sentence he could take it up on

appeal. Id. We vacated the sentence, finding error because “the

District Court did not address Ausburn’s argument that two

cases recently decided in the same district – both of which

concerned sexual offenses involving minors – provided bench

marks for determining a proper sentence, and that the court

should hew close to the sentences in those cases” in order to

avoid unwarranted sentencing disparities. Id. at 330. We found

36

that the court’s terse explanation that four to six years was

“insufficient” punishment, in light of Ausburn’s abuse of his

position as a police officer, was “inadequate” to demonstrate

that it had meaningfully considered Ausburn’s sentencing

disparities argument. Id.

Lychock, Goff, and Ausburn demonstrate that a district

court’s failure to analyze § 3553(a)(6) may constitute reversible

procedural error, even where (as here) the court engages in

thorough and thoughtful analysis of several other sentencing

factors. In other words, meaningful consideration of the nature

of the offense, the characteristics of the defendant, the need to

protect the public, the need to promote deterrence, etc., may not

save a sentence if the sentence is imposed without considering

the risk of creating unwarranted disparities, and the sentence in

fact creates such a risk. See Lychock, 578 F.3d at 219 (stating

that where “the sentence imposed is ‘far below the sentences

given to similar offenders,’ consideration of [sentencing

disparities] deserves ‘particular care’” (quoting Goff, 501 F.3d

at 256)). This is especially true if the sentence falls outside of

the Guidelines, or where, as in Lychock and Ausburn, a party

specifically raises a concern about disparities with the district

court and that argument is ignored.

Here, as in Lychock, the government voiced unmistakable

concern that granting Merced a significant variance could create

unwarranted sentencing disparities. In his sentencing

memorandum, Merced requested a below-Guidelines sentence

of less than 10 years; the government opposed that request in

part because it argued that such a sentence would create

unwarranted sentencing disparities between Merced and other

37

recidivist crack cocaine dealers. This was, at a minimum, a

“colorable legal argument” with a “factual basis” in the record.

Cooper, 437 F.3d at 329. The District Court should have

addressed it as part of its meaningful consideration of the

sentencing factors. It never did so explicitly, and just as in

Lychock, Ausburn, and Goff, there is no evidence that the

District Court accounted for this factor at all, notwithstanding its

thoughtful analysis of other factors. We reiterate that sentencing

courts need not respond in detail and on the record to each and

every argument presented by the parties. But they should

respond to colorable arguments with a factual basis in the

record. If there was some indication in the record that the

District Court had considered the risk of unwarranted sentencing

disparities, we might overlook its failure to explicitly analyze

that factor at length, on the record, at the hearing. See Cooper,

437 F.3d at 329 (explaining that a court need not “discuss and

make findings as to each of the § 3553(a) factors if the record

makes clear the court took the factors into account in

sentencing”) (emphasis added). Nothing in this record,

however, indicates that the District Court considered §

3553(a)(6) at all, despite the government’s emphasis on that

argument in its sentencing memorandum and the risk of

disparities that Merced’s sentence undoubtedly created.15 See

15

In particular, the Court might have considered the fact

that if Merced had possessed just .9 grams more of cocaine, i.e.,

50 grams, he would have been subject to a mandatory minimum

sentence of 10 years in prison. See 21 U.S.C. § 841(b)(1)(A).

See also Kimbrough, 552 U.S. at 108 (stating that as part of its

§ 3553(a)(6) analysis, a sentencing court “must take account of

38

Ausburn, 502 F.3d at 331 (“Where the record is inadequate, we

do not fill in the gaps by searching the record for factors

justifying the sentence.”).

Merced’s 60-month sentence was 128 months less than

what a similarly situated recidivist crack cocaine dealer could

expect to receive under the circumstances. See, e.g., United

States v. Tupuola, 587 F.3d 1025, 1026 (9th Cir. 2009)

(describing career offender who pleaded guilty to distribution of

crack cocaine, had an advisory Guidelines range of 188-235

months, and received a 188-month sentence); Welton, 583 F.3d

at 495-96 (same); United States v. Sharkey, 543 F.3d 1236, 1238

(10th Cir. 2008) (same); United States v. Torres, 541 F.3d 48,

50-51 (1st Cir. 2008) (describing defendant who sold 10 grams

of crack cocaine, qualified as a career offender, fell within the

same Guidelines range as Merced, and received a 195-month

sentence). Before the District Court granted such a large

variance, it should have explained why that variance would not

contribute to unwarranted sentencing disparities pursuant to §

3553(a)(6). Its failure to do so was procedural error.

IV.

In summary, we hold that the District Court committed

two errors. First, it may have sentenced Merced pursuant to a

personal policy disagreement with the Guidelines; specifically,

disagreement with the scope of the career offender provision of

sentencing practices in other courts and the ‘cliffs’ resulting

from . . . statutory mandatory minimum sentences”).

39

U.S.S.G. § 4B1.1. While granting a variance on such grounds

may be permissible, the District Court must, at the very least,

explain itself more thoroughly than it has so far. On remand, the

District Judge should clearly explain whether he is granting a

variance based on a policy disagreement with § 4B1.1. If so, he

must justify that decision to the extent required by our

precedents. Second, the District Court failed to analyze a highly

relevant sentencing factor, § 3553(a)(6). The Court’s choice of

sentence may have created a risk of unwarranted disparities

between Merced and similarly situated recidivist crack cocaine

dealers. The Court should have considered this issue, and

addressed the government’s argument that a Guidelines sentence

was necessary to promote uniformity in sentencing.

Our insistence that sentencing courts follow the requisite

procedures by no means diminishes the “superior position” of

the district judge to make those determinations so critical to a

just and reasonable sentence. See Tomko, 562 F.3d at 566.

Rather, requiring a “reasoned and rational justification” on the

record for the sentence chosen serves several critical purposes.

Grier, 475 F.3d at 572. Most basically, it allows us to fulfill our

“important role,” Tomko, 562 F.3d at 575, of exercising

“effective appellate oversight” as required by Supreme Court

precedent. Grier, 475 F.3d at 572. But it also serves an even

higher purpose within our system of criminal justice. Requiring

coherent explanations of sentence “instill[s] public confidence

in the judicial process.” Id. It “assure[s] the parties of the

fairness of the proceedings,” “demonstrat[es] the serious

reflection and deliberation that underlies each criminal

sentence,” and “offers the defendant, the government, the

victim, and the public a window into the decision-making

40

process and an explanation of the purposes the sentence is

intended to serve.” Id. See also Rita, 551 U.S. at 356

(“Confidence in a judge’s use of reason underlies the public’s

trust in the judicial institution. A public statement of those

reasons helps provide the public with the assurance that creates

that trust.”) We believe that each of these important interests is

served by our decision today.

“We do not suggest that the original sentence reflects

anything less than the sound judgment of the District Judge, or

that the final sentence should necessarily differ from the one

previously imposed.” Grier, 475 F.3d at 572. We simply ask

for a clearer, more complete explanation than the District Court

has offered to date. We do not think that this asks too much.

Demanding close adherence to procedural requirements –

including the requirement that sentencing courts explain their

reasoning with clarity – is, we think, more than fair in light of

the deference we afford to district courts as a substantive matter

under Tomko.

The judgment of sentence will be vacated, and the case

remanded for re-sentencing.

41

United States v. Hector Merced

No. 09-1844

AMBRO, Circuit Judge, concurring

I fully join my colleagues in concluding that the District

Court erred procedurally by failing to explain its apparent policy

disagreement with the career offender provision, U.S.S.G.

§ 4B1.1, and by failing to consider the need to avoid

unwarranted sentencing disparities, 18 U.S.C. § 3553(a)(6). I

write separately to explain why I do not doubt that district courts

are free to vary from the career offender Guideline range based

on a categorical policy disagreement with § 4B1.1.1 Because of

1

In addition, though I agree with my colleagues that the

District Court did not “ignore[]” the Guideline range, Maj. Op.

at 21, I am unsure that it gave the Sentencing Guidelines “the

consideration they are due” in reaching its sentence. United

States v. Goff, 501 F.3d 250, 256 (3d Cir. 2007).

At sentencing, the Court quickly rejected the propriety of

a sentence within both the career offender Guideline range of

188 to 235 months and the Guideline range that applied in the

absence of the career offender enhancement—110 to 137

months, calculated under the drug quantity table in U.S.S.G.

§ 2D1.1(c). Though the Court subsequently articulated a reason

for rejecting the career offender Guideline range, and found that

a sentence within that range was not “near a reasonable

sentence,” App. at 76, it did not explain why a sentence within

the 110 to 137 month-range was also inappropriate. A sentence

within this range would seemingly take into account the Court’s

the importance of this question, I believe we should resolve it in

this case, despite the fact that the parties do not dispute it. Cf.

Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 290 (1917)

(noting that a “court cannot be controlled by agreement of

counsel on a subsidiary question of law”). Indeed, I find it odd

that we vacate the District Court’s sentence with instructions to

explain its policy disagreement without first concluding that it

was authorized to vary on that ground in the first place.

I.

It is, of course, not always the case that, when a district

court varies from the career offender Guideline range, it has

done so based on a “policy disagreement” with § 4B1.1. Rather,

a variance from that range often may reflect a sentencing court’s

predominant concern that the amount of crack cocaine possessed

by Merced was “relatively small” when compared to the

“kilograms and pounds of stuff” that it “usually sees,” id. at 77,

as the offense levels provided for in § 2D1.1(c) are tied

specifically to the amount of crack cocaine involved in the

offense. Compare U.S.S.G. § 2D1.1(c)(2) (providing for an

offense level of 36 for an offense involving between 1.5 and 4.5

kilograms of crack cocaine), with § 2D1.1(c)(6) (providing for

an offense level of 28 for an offense involving between 35 and

50 grams of crack cocaine). In that light, I cannot conclude with

conviction that the Court gave the Guidelines “the consideration

they are due” as a factor under § 3553(a). Goff, 501 F.3d at 256;

18 U.S.C. § 3553(a)(4)(A).

2

determination that, “despite meeting the formal criteria for

career offenders,” the defendant’s individual circumstances “fall

outside the guideline’s heartland or intended scope.” United

States v. Pruitt, 502 F.3d 1154, 1170 (10th Cir. 2007)

(McConnell, J., concurring), vacated on other grounds, 128

S. Ct. 1869 (2008); see also United States v. Martin, 520 F.3d

87, 95–96 (1st Cir. 2008) (district court’s variance from career

offender Guideline range was not a “repudiation of the policies

embodied in the [S]entencing [G]uidelines,” as the court had

“grounded the defendant’s sentence in case-specific

considerations,” including the court’s conclusion that the

defendant was a “changed man” who would “not re-offend”).2

Turning to our case, this is how Merced seeks to

characterize the District Court’s variance: he argues that, rather

than basing its sentencing decision “on a categorical policy

about the career offender provision in general[,] . . . the District

2

These types of justifications were also typical of pre-Booker

downward departures in calculating the sentencing range under

the Guidelines for defendants qualifying as career offenders.

See Michael S. Gelacak et al., Departures Under the Federal

Sentencing Guidelines: An Empirical and Jurisprudential

Analysis, 81 Minn. L. Rev. 299, 356–57 & n.248 (1996)

(reporting that a frequent justification for a sentence below the

career offender Guideline range was that the defendant’s

predicate offenses were “minor or too remote in time to warrant

consideration”).

3

Court grounded its sentence firmly in the individual

circumstances of Mr. Merced’s case, as filtered through the

§ 3553(a) factors.” (Appellee’s Br. at 28.) The Court similarly

characterized its sentence as solely based on its evaluation of

“the nature and circumstances of the offense and the history and

characteristics of” Merced, 18 U.S.C. § 3553(a)(1), rather than

a criticism of the career offender provision itself.

Yet the Court’s stated policy of reserving a sentence

within the career offender Guideline range for “significant,

violent drug deals” is essentially a rejection of § 4B1.1’s policy

of treating repeat drug offenders—regardless of the quantity of

drugs involved or whether the defendant’s offense or prior

offenses involved violence—as offenders whose Guideline

ranges should be at or near the statutory maximum sentence.

Stated another way, the Court imposed new, categorical factors

(the quantity of drugs involved and whether the offense or

predicate offenses involved violence) in determining the

appropriateness of a sentence within the career offender

Guideline range. Cf. United States v. Moreland, 437 F.3d 424,

436 (4th Cir. 2006) (noting that the career offender provision is

“fraught with potential imprecision,” and “covers a broad range

of offenders, encompassing the street-level dealer who handles

only small quantities of drugs and the drug kingpin or the

recidivist with a history of violence”) (internal quotation marks

omitted); see also Pruitt, 502 F.3d at 1167 (McConnell, J.,

concurring) (noting that, under § 4B1.1, “it does not matter, for

sentencing purposes, whether [the defendant’s] prior drug

4

felonies were large-scale or petty, violent or nonviolent”). In

that light, I believe the Court’s variance is best understood as

motivated by a policy that “applies to a wide class of offenders

or offenses,” United States v. Cavera, 550 F.3d 180, 191 (2d

Cir. 2008) (en banc)—and one that disagrees with the policy

underlying § 4B1.1—rather than a straightforward application

of the § 3553(a) factors to reach a reasonable sentence for a

defendant whose circumstances fall outside the intended scope

of the career offender provision.

Though the line between a variance based on a “policy

disagreement” with § 4B1.1 and one based on an

“individualized determination” of a particular career offender’s

circumstances is less than precise, it is vital that we give district

courts explicit guidance regarding their authority to vary from

the career offender Guideline range on policy grounds. First,

doing so will discourage courts from “masking” their policy

disagreements as “individualized determinations,” an

“[un]acceptable sentencing practice” that the Supreme Court has

described as “institutionalized subterfuge.” Spears v. United

States, 129 S. Ct. 840, 844 (2009). Second, the distinction

between these types of variances may have important

implications for the scope of our appellate review. When a

district court finds that a defendant’s circumstances place him

outside the “heartland” of defendants to whom § 4B1.1 was

intended to apply, its decision to vary from the career offender

Guideline range presumably will be entitled to the “greatest

respect.” Kimbrough v. United States, 552 U.S. 85, 109 (2007)

5

(a district court’s decision to vary from the Guidelines “may

attract greatest respect when the sentencing judge finds a

particular case outside the ‘heartland’ to which the Commission

intends individual Guidelines to apply”) (internal quotation

marks omitted). By contrast, a variance for a career offender

whose circumstances place him within the “heartland” of

defendants to whom § 4B1.1 was intended to apply—and thus

“is necessarily based on a policy disagreement with the

Guidelines,” Spears, 129 S. Ct. at 843—may be subject to

“closer review” and entitled to less deference. Kimbrough, 552

U.S. at 109; Spears, 129 S. Ct. at 843 (the “implication” of

Kimbrough is that “an ‘inside the heartland’ departure . . . may

be entitled to less respect”).

Though we are not required in this case to determine

whether the District Court’s seeming policy disagreement

survives such “closer review” (as the Court did not explain its

policy in light of the § 3553(a) factors), I nonetheless believe

that we should determine (before remanding for resentencing)

whether a sufficiently explained policy disagreement with

§ 4B1.1 is a permissible ground on which to vary from the

Guidelines. I address this second question below.

II.

Until recently, the Government had taken the position

that district courts were not free to vary from the career offender

Guideline range on policy grounds. The Circuit Courts for the

6

Seventh and Eleventh Circuits previously agreed, and concluded

that district courts are not authorized under Kimbrough to vary

based on policy disagreements with the career offender

provision because § 4B1.1 was promulgated by the Sentencing

Commission in direct response to a statutory directive in 28

U.S.C. § 994(h). See United States v. Welton, 583 F.3d 494 (7th

Cir. 2009), overruled by United States v. Corner, No. 08-1033,

___ F.3d ___, 2010 WL 935754 (7th Cir. Mar. 17, 2010) (en

banc); United States v. Vazquez, 558 F.3d 1224 (11th Cir. 2009),

vacated, 130 S. Ct. 1135 (2010).

As the majority notes, this position is “falling out of

favor.” Maj. Op. at 25. The Government has now abandoned

it, see Appellant’s Br. at 24 (conceding that policy

disagreements “may be the basis for varying from the career

offender [G]uideline”), Welton was overruled by the en banc

Seventh Circuit Court, and Vazquez was vacated by the Supreme

Court. Moreover, each of the First, Sixth, and Eighth Circuit

Courts have concluded that, after Kimbrough, district courts may

vary from the career offender Guideline range based on a policy

disagreement (just as they may for any provision of the

Guidelines). See United States v. Gray, 577 F.3d 947, 950 (8th

Cir. 2009); United States v. Michael, 576 F.3d 323, 327–28 (6th

Cir. 2009); United States v. Boardman, 528 F.3d 86, 87 (1st Cir.

2008) (“[W]e do not see why disagreement with the

Commission’s policy judgment (as expressed in [§ 4B1.1])

would be any less permissible a reason to deviate than

7

disagreement with the guideline policy judgment at issue in

Kimbrough.”).3

I have no hesitancy reaching the same conclusion.

Section 994(h) is directed to the Sentencing Commission, not

sentencing courts, and does not purport to limit their sentencing

discretion.4 See Michael, 576 F.3d at 328 (“By its terms,

[§ 994(h)] tells the Sentencing Commission, not the courts, what

3

Though the Second Circuit Court has not precisely held that

Kimbrough authorizes district courts to vary from the career

offender Guideline range on policy grounds, it similarly has

rejected the argument that § 994(h) restricts district courts’

sentencing authority. See United States v. Sanchez, 517 F.3d

651, 663–65 (2d Cir. 2008).

4

Section 994(h) provides that

[t]he Commission shall assure that the guidelines

specify a sentence to a term of imprisonment at or

near the maximum term authorized for categories

of defendants in which the defendant is eighteen

years old or older and—(1) has been convicted of

a felony that is . . . (B) an offense described in . . .

21 U.S.C. § 841 . . . and (2) has previously been

convicted of two or more prior felonies, each of

which is . . . (B) an offense described in . . . 21

U.S.C. § 841[.]

28 U.S.C. § 994(h) (emphasis added).

8

to do.”); Sanchez, 517 F.3d at 663 (same). And though

Kimbrough cited § 994(h) as an example of “Congress . . .

direct[ing] sentencing practices in express terms,” 552 U.S. at

103, it did not thereby suggest that the policies reflected in

§ 994(h) are binding on sentencing courts. Rather, Kimbrough

cited § 994(h) in the context of explaining why a different

statutory provision, 28 U.S.C. § 841(b), was not binding on the

Sentencing Commission. Kimbrough, 552 U.S. at 102–03

(rejecting the Government’s argument that § 841(b) required the

Sentencing Commission to establish offense levels for crack

cocaine offenses reflecting the crack/powder cocaine sentencing

disparity imbedded in that statute). See Corner, 2010 WL

935754, at *3 (Kimbrough referred to § 994(h) solely in the

context of explaining why “the crack/powder ratio in the

Guidelines was the choice of the Commission rather than

[mandated by] Congress [in 28 U.S.C. § 841(b)]”). In sum,

though Congress required the Commission to follow certain

policies in crafting the career offender provision, neither

Kimbrough nor § 994(h) supports the conclusion that a district

court is prohibited from considering a policy disagreement with

§ 4B1.1 in sentencing a career offender.

Moreover, our Court recently rejected the basic premise

underlying Welton and Vazquez in the context of sentencing

disparities resulting from “fast-track” programs, which apply in

certain judicial districts and authorize a downward departure if

a qualifying illegal immigrant defendant pleads guilty and

waives his or her appellate rights. See United States v.

9

Arrelucea-Zamudio, 581 F.3d 142, 145–46 (3d Cir. 2009)

(citing U.S.S.G. § 5K3.1); see also Vazquez, 558 F.3d at 1229

(concluding that district courts may not vary based on a policy

disagreement with the career offender provision because the

enhanced sentencing ranges provided for in § 4B1.1, like the

disparities resulting from fast-track programs, are “the result of

‘direct congressional expression’”). There we rejected the Fifth,

Ninth, and Eleventh Circuit Courts’ conclusion that district

courts may not consider disparities resulting from the limited

availability of the “fast-track” program because the Guideline

provision authorizing the downward departure was the result of

a congressional directive in the 2003 PROTECT Act.5 See id.

at 149–53. We criticized these Courts’ “attempt to distinguish

fast-track programs from the sentencing guidance provided in

Kimbrough [] and [to] constrain a district court’s sentencing

discretion solely on the basis of a congressional policy

argument,” which we characterized as “an attempt to manipulate

the advisory character of the Guidelines.” Id. at 151. That

observation applies equally here; though both § 994(h) and the

PROTECT Act direct the Sentencing Commission to promulgate

Guideline provisions reflecting certain policies, neither restrains

a district court’s sentencing discretion under Booker.

5

We did so even though the Government had declined to

argue that “congressional policy concerning fast-track programs

prohibited the exercise of a district court’s discretion.” Id. at

150 n.8.

10

* * * * *

In sum, I believe, and would hold, that the Supreme

Court’s reasoning in Kimbrough extends to § 4B1.1 and that

district courts are authorized to vary from the career offender

Guideline range on policy grounds. Save these statements and

my supplemental comment in the first note of this concurrence,

I join Judge Smith’s excellent opinion in full.

11