United States v. James Brown

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 21, 2015 Decided December 15, 2015

No. 13-3062

UNITED STATES OF AMERICA,

APPELLEE

v.

JAMES WENDELL BROWN, ALSO KNOWN AS JIMMY,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cr-00155-1)

Barbara E. Kittay, appointed by the court, argued the

cause and filed the briefs for appellant.

Lauren R. Bates, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Vincent H.

Cohen Jr., Acting U.S. Attorney, and Elizabeth Trosman,

Assistant U.S. Attorney.

Before: HENDERSON, Circuit Judge, and EDWARDS and

SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

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Dissenting opinion filed by Senior Circuit Judge

SENTELLE.

EDWARDS, Senior Circuit Judge: The Sentencing Reform

Act of 1984, governing imposition of criminal sentences in

federal courts, 18 U.S.C. § 3551 et seq., imposes certain

“indispensable” procedural obligations on sentencing judges.

In re Sealed Case, 527 F.3d 188, 191 (D.C. Cir. 2008).

Among these obligations are the requirements of 18 U.S.C. §

3553(c), which prescribe how trial judges must explain their

sentencing decisions. See id.

The nature and degree of explanation required by

§ 3553(c) varies depending on how a proposed sentence

compares to the recommended sentencing range calculated

under the advisory United States Sentencing Guidelines

(“Guidelines”). When the District Court imposes a term of

incarceration that is outside the Guidelines range, as is the

case here, it “must consider the extent of the deviation and

ensure that the justification is sufficiently compelling to

support the degree of the variance.” Gall v. United States, 552

U.S. 38, 50 (2007). In addition, the trial judge must, in open

court, state “the specific reason for the imposition of a

sentence different from that described” by the appropriate

Guidelines calculation. 18 U.S.C. § 3553(c)(2). Section

3553(c)(2) additionally requires that those reasons “be stated

with specificity” in writing. Moreover, when the prison term

imposed is above the properly calculated advisory Guidelines

range, the district judge must “state ‘the specific reason’ . . .

why the defendant’s conduct was more harmful or egregious

than the typical case” represented by that range. United States

v. Nicely, 492 F. App’x 119, 121 (D.C. Cir. 2012) (quoting 18

U.S.C. § 3553(c)(2)) (citing United States v. Akhigbe, 642

F.3d 1078, 1086 (D.C. Cir. 2011) and In re Sealed Case, 527

F.3d at 192). “This . . . precedent reflects the Supreme Court’s

3

interpretation of the Sentencing Act’s requirements in Gall,

552 U.S. at 49-51, and Rita v. United States, 551 U.S. 338,

356 (2007).” Nicely, 492 F. App’x at 121.

Before the District Court, appellant James Brown pled to

one count of distribution of child pornography based on the

internet transmission of three photographs in violation of

18 U.S.C. § 2252A(a)(2). The offense is punishable by a

mandatory minimum of no less than five years of

imprisonment and no more than 20 when, as here, a defendant

has no prior convictions of a similar nature. See 18 U.S.C.

§ 2252A(b)(1). The Guidelines sentencing range applicable to

Brown is 97 to 121 months, reflecting an eleven-level

increase based on four offense-characteristic enhancements

and one three-level reduction. Government and defense

counsel both argued for a bottom of the range 97-month (eight

years and one month) term of incarceration. The trial judge

sentenced Brown to 144 months (12 years) to be followed by

240 months (20 years) of supervised release. This period of

incarceration exceeded the high end of the Guidelines range

by 23 months and the low end by 47 months.

Brown offers two procedural arguments in support of his

contention that his sentence was illegally imposed. First, he

argues that the above-Guidelines sentence should be set aside

because it resulted from the trial judge’s mistaken belief that

the applicable Guidelines calculation did not take account of a

five-level offense-characteristic enhancement to which Brown

admitted as part of his plea. For the reasons discussed below,

we find that this contention is not supported by the record.

Brown also argues that the District Court’s explanation

of the above-Guidelines sentence was insufficient as a

procedural matter under § 3553(c)(2). We agree. Because we

are unable to discern from the trial judge’s unparticularized

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in-court and written explanations why he found the

defendant’s conduct more harmful or egregious than that

typically falling within the properly calculated Guidelines

range of 97 to 121 months, the sentence violates § 3553(c)(2).

See Akhigbe, 642 F.3d at 1086-88. Although Brown failed to

preserve a § 3553(c)(2) challenge, the District Court’s clearly

insufficient explanation of the sentence meets the four-part

plain error test under the law of the circuit. See id. at 1087-88

(citing In re Sealed Case, 527 F.3d at 193). We therefore

exercise our discretion to notice the error, vacate the sentence,

and remand for resentencing.

Appellant also challenges the substantive reasonableness

of his sentence. Because we are unable to discern the

sentencing judge’s rationale for imposing an above-

Guidelines sentence, we are unable to address appellant’s

substantive claim. See Gall, 552 U.S. at 51.

I. Background

Brown’s plea was the result of an online conversation

that he initiated with a Metropolitan Police Department

undercover detective in March of 2012. During that

conversation, Brown expressed an interest in meeting the

detective’s fictional 12-year-old daughter for the purpose of

engaging in sexual acts. He also described sexual acts that he

had previously engaged in with his then three-year-old

granddaughter and sent the detective three images of child

pornography. During the subsequent investigation into the

online chat, law enforcement authorities confirmed that there

were open charges in Fauquier County, Virginia, involving

allegations that appellant had sexually abused two of his

granddaughters. The U.S. Attorney’s Office additionally

learned that Brown’s 14-year-old daughter had, at age six,

alleged that when she was approximately three years old

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Brown had sexually abused her. Statement of the Offense,

reprinted in Joint Appendix (“J.A.”) 33-37.

The Government charged Brown by information with

one count of distribution of child pornography. Brown entered

a pre-indictment plea on January 30, 2013, based on a

Statement of the Offense that included facts supporting the

allegations that Brown had sexually abused his daughter and

granddaughters. At some point before the sentencing date, the

prosecutor and defense counsel realized that the plea

agreement included a stipulation to an incorrect Guidelines

calculation. The parties’ agreement listed five offense-

characteristic enhancements. First Plea Agreement, reprinted

in J.A. 16-17. One, a four-level enhancement for pornography

involving masochistic material, was mistakenly included

without a basis in either law or fact. See Plea Tr., reprinted in

J.A. 86-88; see also Sent. Tr., reprinted in J.A. 115-16. With

the improper inclusion of that four-level offense

characteristic, the recommended Guidelines incarceration

range was 151 to 181 months. First Plea Agreement, J.A. 17.

At the suggestion of the trial judge, the initial plea was

withdrawn. See Plea Tr., J.A. 86. On June 19, 2013, appellant

pled pursuant to a new agreement based on the original

Statement of the Offense; however, the agreement

incorporated a stipulation to a properly calculated Guidelines

range. See id. at 87-88. The recalculated range retained (1) a

two-level increase under § 2G2.2(b)(2) because the offense

involved minors under age 12; (2) a two-level increase under

§ 2G2.2(b)(6) for use of a computer; (3) a two-level increase

under § 2G2.2(b)(3)(F) because the distribution at issue did

not fit within any other section 3 category; and (4) a five-level

pattern of activity increase under § 2G2.2(b)(5) made possible

by Brown’s admissions regarding his granddaughters and

daughter. This calculation, like the first one, included a three-

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level decrease for acceptance of responsibility. The resulting

sentencing range was 97 to 121 months. See Second Plea

Agreement, reprinted in J.A. 25-26.

The second agreement, like the first, provided that in

consideration of Brown’s plea, the U.S. Attorney’s Office for

the District of Columbia would not further prosecute him for

any conduct set forth in the Statement of the Offense, the U.S.

Attorney’s Office for the Eastern District of Virginia would

not prosecute him for possession or receipt of child

pornography, and the Fauquier County prosecutor’s office

would not prosecute him for the behavior on which the five-

level pattern of activity enhancement was based. See id. at 16,

25.

In a Memorandum in Aid of Sentencing, as well as

during the sentencing colloquy held on June 26, 2013,

Government counsel maintained that a 97-month term of

incarceration was appropriate in light of the sentencing factors

specified in 18 U.S.C. § 3553(a). Noting the “deeply

disturbing” nature of Brown’s solicitation of the undercover

officer’s fictional 12-year-old daughter, Brown’s sexual

contact with his daughter and granddaughters, and the harm

inflicted on children who are the subject of pornography, the

prosecutor argued that a 97-month prison term would

adequately protect the public and punish Brown. See

Government’s Memorandum in Aid of Sentencing (“Gov’t

Memo”), reprinted in J.A. 50-54; see also Sent. Tr., J.A. 120-

21. Government counsel also cited two comparable cases in

which a similar sentence had been imposed by other District

Court judges in the Circuit. See Gov’t Memo, J.A. 53-54; see

also Sent. Tr., J.A. 122-24 (discussing one of those cases). In

concluding the colloquy, the prosecutor explained that while

the Government was bound not to oppose a sentence at the

low end of the Guidelines range as a result of the plea

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agreement, it was, “frankly,” seeking a 97-month sentence

“because it’s a just sentence in this case.” Sent. Tr., J.A. 125.

Defense counsel initially argued for a downward

variance resting largely on the argument that the Guidelines

provisions pertaining to child pornography are viewed by

many courts with skepticism as having been driven more by

congressionally imposed mandatory minimum sentences than

the sort of empirical data and national experience that shapes

much of the Sentencing Commission’s work. See Brown’s

Memorandum in Aid of Sentencing, reprinted in J.A. 58-62.

Defense counsel pointed out that individuals like Brown, who

email a few images only to one person, receive nearly the

same enhancements as large-scale commercial traffickers in

child pornography. See id. at 61. Thus, according to defense

counsel, a number of judges in other courts and in this Circuit

have imposed below-Guidelines sentences in cases

comparable to appellant’s. See id. at 62-69; see also Sent. Tr.,

J.A. 128-30.

In response to defense counsel’s argument for a

downward variance, the trial judge stated that he had a “track

record” “of rejecting time and again the government’s

request[s] as too low.” Sent. Tr., J.A. 130. The judge also

stated that there was “no chance, zero, that [he] would vary

below the guideline range,” id. at 132, and suggested that

counsel focus her argument on how “the low end of the range

applying those 3553 factors . . . makes sense,” id. at 133.

Defense counsel then joined the Government in advocating

for a 97-month prison term. See id. at 133-38.

At the conclusion of counsels’ arguments and after

hearing from Brown and Brown’s mother, the District Court

offered its explanation of the sentence imposed. It began by

noting that it understood its duty to consider the § 3553(a)

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factors in evaluating the Guidelines range and determining an

appropriate sentence. See id. at 142. The trial judge then

asserted that Brown was a danger to the public, saying:

“There’s just no question about that in my mind, zero.” Id.

After pointing out that by pleading, appellant had avoided, “at

least in this Court[,] . . . a very high sentence over and above

the guideline range,” the judge, invoking four of the § 3553(a)

factors, noted that his aim in imposing the sentence was to

protect the public, deter appellant and others, and ensure that

Brown was adequately punished for the seriousness of his

conduct. Id. at 143. Observing that “this is not conduct we

normally get around here,” id., the trial judge said:

Here we have the Internet, interstate transmission of

these images. We have that combined with what I’ve

referred to as predatory conduct i.e., reaching out to

others to help them – to use them to help you find

access to minor children. And what makes it even

more unusual as a case there’s actual, actual abuse of

children that occurred here. And not just once, over a

period of time.

Id. at 143-44. The trial judge concluded, stating that “if ever

there was a case . . . . that required at a minimum the high end

of the guideline range if not a variance,” this is it. Id. at 144.

Turning to the request for a below-Guidelines variance,

the trial judge advised Brown that his counsel had “ask[ed]

for the moon” in seeking such a sentence. Nevertheless, the

judge noted that Brown should give his counsel credit for

getting “such a good deal.” Id. at 144-45. The trial judge

stated that, as he saw it, Brown should be pleased because

defense counsel had locked the Government into arguing for a

low-end sentence, the Virginia authorities had passed on

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prosecuting him, and the low end of his newly calculated

Guidelines range was 97 months. Id. at 144-45.

At this point, the judge again listed the four § 3553(a)

factors on which he was relying and pointed out that

appellant’s conduct was “very serious.” Id. at 145-46.

Without further reference to the particulars of Brown’s

conduct or the conduct accounted for by the applicable

Guidelines calculation, the District Court stated:

In my judgment, this is one of those unusual cases

that requires a variance upward. In my judgment,

121 is not enough. A higher sentence is warranted

here to reflect the seriousness of your conduct, to

punish you appropriately, to protect the public and to

deter others who may be similarly inclined.

Id. at 146. The judge then imposed a 144-month prison term,

47 months in excess of the jointly requested low end of the

Guidelines range and 23 months in excess of the high end. Id.

The trial judge signed a Statement of Reasons form the

next day. On the form, under “Reason(s) for Sentence Outside

the Advisory Guideline System,” the judge checked four

boxes to indicate that he had taken into account the factors

listed in 18 U.S.C. § 3553(a)(1), (a)(2)(A), (a)(2)(B), and

(a)(2)(C). Under the subsection titled “Explain the facts

justifying a sentence outside the advisory guideline system,”

the trial judge simply stated: “Defendant transmitted child

pornography interstate via the internet; engaged in predatory

behavior; and had actual hands-on victims. Court also referred

to pertinent factors under 18 USC § 3553(a).” Statement of

Reasons, reprinted in J.A. 81. The space available on the form

for the judge to offer “Additional Facts Justifying the

Sentence in This Case” is blank. Id. at 82.

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II. Analysis

A. Standard of Review

As a result of the Supreme Court’s decisions in United

States v. Booker, 543 U.S. 220 (2005), and Gall v. United

States, 552 U.S. 38 (2007), we review District Court

sentences pursuant to a two-step analysis. See In re Sealed

Case, 527 F.3d at 190-91. First we determine whether the

District Court committed significant procedural error. See id.

at 190. Only if there is no such error, do we consider the

overall reasonableness of the sentence in light of the

sentencing factors listed in 18 U.S.C. § 3553(a). See id. at

191. There is no preservation requirement for reasonableness

review. See United States v. Bras, 483 F.3d 103, 113 (D.C.

Cir. 2007). However, claims of procedural error, if not

preserved, are reviewed under the four-part plain error test.

See Akhigbe, 642 F.3d at 1085-86.

B. The District Court’s Understanding of the Applicable

Offense Characteristics

Brown’s first procedural claim, which was properly

preserved, is that the trial judge did not understand which

specific offense characteristics were included in the

Guidelines calculation to which the parties stipulated in the

second plea agreement. Br. for Appellant at 5, 9-10; see also

Reply Br. for Appellant at 13-15. In support of this argument,

Brown relies primarily on two statements made by the District

Court during the sentencing hearing. See Reply Br. for

Appellant at 13-15. Near the beginning of the hearing, the

trial judge attributed the wrong value to the properly removed

four-level masochistic materials offense characteristic,

referring to the enhancement that was “taken away” as the

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“five credit enhancement.” Sent. Tr., J.A. 114. Similarly, near

the end of the hearing, the trial judge incorrectly identified the

five-level pattern of activity offense characteristic that was

properly included in the calculation as the “four-point

enhancement.” Id. at 153.

While these statements suggest some confusion on the

part of the trial judge, the Statement of Reasons form clarifies

his understanding. Typed on the form is the sentence: “Court

found that the 4 level enhancement, pursuant to USSG

§ 262.2(b)(4) does not apply.” Statement of Reasons, J.A. 79.

Although the reference should have been to Guidelines

§ 2G2.2(b)(4), not § 262.2(b)(4), this statement supports the

conclusion that the court understood that it was the four-level

masochistic materials offense characteristic, not the pattern of

activity characteristic, that was removed from the corrected

Guidelines calculation. We therefore reject appellant’s first

procedural challenge to the sentence.

C. The Adequacy of the District Court’s § 3553(c)(2)

Statements

Appellant did not preserve a claim that the District Court

failed to adequately explain its above-Guidelines sentence.

Therefore, our review is pursuant to the four-part plain error

test. Akhigbe, 642 F.3d at 1085-86. Under this test, appellant

must show: “(1) there is in fact an error to correct; (2) the

error is plain; (3) it affects substantial rights; and (4) it

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (citation omitted). Reviewing the

sentencing proceedings as a whole, including the arguments

of the prosecutor and defense counsel as to why a 97-month

sentence was appropriate in light of the § 3553(a) factors, we

conclude that the District Court plainly erred in failing to

12

provide adequate in-court and written explanations of the

unsought above-Guidelines sentence.

During his in-court explanation of the sentence, the trial

judge several times asserted that he was imposing an above-

Guidelines sentence “to reflect the seriousness of [Brown’s]

conduct, to punish [Brown] appropriately, to protect the

public and to deter others who may be similarly inclined.”

Sent. Tr., J.A. 146; see also id. at 143, 145-46. “But mere

recitation of . . . § 3553(a) factor[s] without application to the

defendant being sentenced does not demonstrate reasoned

decisionmaking or provide an adequate basis for appellate

review.” Akhigbe, 642 F.3d at 1086 (citation omitted).

Moreover, contrary to our instruction in Nicely, and in direct

contradiction to § 3553(c)(2), the District Court never

articulated the “‘specific reason’” why he found Brown’s

“conduct . . . more harmful or egregious than the typical case”

accounted for in the properly calculated Guidelines range of

97 to 121 months. Nicely, 492 F. App’x at 121 (quoting 18

U.S.C. § 3553(c)(2)). Nor could it, at least based on the

descriptions of Brown’s criminal conduct contained in the in-

court and written explanations of the sentence.

The spare and unparticularized characterization of

Brown’s conduct that the judge offered during his in-court

explanation closely tracks the code provision to which Brown

pled, 18 U.S.C. § 2252A(a)(2), and two of the specific offense

characteristics included in his Guidelines calculation –

§ 2G2.2(b)(5) (a pattern of activity involving the sexual abuse

or exploitation of minors) and § 2G2.2(b)(6) (use of a

computer). And the trial judge’s unparticularized references to

“actual abuse of children” and “predatory conduct” provide

no basis for suggesting why the conduct described was more

harmful or egregious than that accounted for in the Guidelines

calculation, let alone why that conduct merited a sentence 23

13

months in excess of the high end of the applicable Guidelines

range.

“Sexual abuse or exploitation,” as used in § 2G2.2(b)(5),

is defined, in part, by reference to a list of federal criminal

offenses, some of which include “actual” (hands-on) “abuse

of children.” See Application Note 1 to § 2G2.2 Guidelines

Manual (Nov. 1, 2012) [hereinafter “Application Note 1”]

(defining “[s]exual abuse or exploitation” as including, for

example, 18 U.S.C. § 2241(c) (Aggravated Sexual Abuse with

Children) (“Whoever . . . knowingly engages in a sexual act

with another person who has not attained the age of 12

years . . . .”)). And predatory crimes – defined as “crime[s]

that involve[] preying upon and victimizing individuals,”

BLACK’S LAW DICTIONARY (10th ed. 2014) – aptly describes

all of the offenses which define the § 2G2.2(b)(5) offense

characteristic. See Application Note 1 (defining “[s]exual

abuse or exploitation” by reference to federal offenses

included within U.S. Code, Title 18, ch. 117 (Transportation

for Illegal Sexual Activity and Related Crimes); ch. 110

(Sexual Exploitation and Other Abuse of Children); and ch.

109A (Sexual Abuse)). Similarly, the District Court’s

unparticularized reference to abuse “over a period of time”

provides no basis for suggesting that Brown’s behavior was

more egregious than that captured in § 2G2.2(b)(5) because,

as defined in the Guidelines, a pattern of abuse or exploitation

necessarily includes actions over some period of time. See

Application Note 1 (defining the two or more instances of

abuse or exploitation necessary to form a “pattern” as

“separate instances” of misconduct).

The District Court’s comment that the combination of

behaviors to which Brown pled is “not conduct we normally

get around here” is equally unenlightening in terms of

explaining why Brown’s conduct was more egregious or

14

harmful than that accounted for by the applicable Guidelines

calculation. Most obviously, this is because, as noted, the 97

to 121 month Guidelines range accounts for all of the criminal

conduct described by the trial judge in justifying the above-

Guidelines sentence. In addition, however, the District Court

employed the wrong measure of atypical conduct. It is the §

3553(a)(4) Guidelines calculation for the applicable category

of offense committed by the applicable category of defendant,

not the individual judge’s experience in his or her district, that

provides the bench mark for assessing whether criminal

behavior merits an upward variance under the § 3553(a)

sentencing factors. See Nicely, 492 F. App’x at 121 (citing 18

U.S.C. § 3553(c)(2); Akhigbe, 642 F.3d at 1086; and In re

Sealed Case, 527 F.3d at 192).

In Akhigbe, we said that when observations about an

offense “apply equally to any defendant convicted of th[at]

offense,” those observations “provide no individualized

reasoning as to why . . . a sentence . . . above the Guidelines

range [is] appropriate for th[e] particular defendant.” Akhigbe,

642 F.3d at 1086. Applying the logic of that reasoning here,

we do not see how the trial judge’s in-court description of

Brown’s conduct (which includes no particulars

distinguishing that conduct from conduct encompassed within

the base offense and specific offense-characteristic

enhancements comprising his Guidelines calculation) can

demonstrate that Brown’s behavior was more egregious than

that accounted for in the 97 to 121 month Guidelines

calculation.

To be sure, “it is not error for a district court to enter

sentencing variances based on factors already taken into

account by the Advisory Guidelines.” United States v.

Ransom, 756 F.3d 770, 775 (D.C. Cir. 2014) (citation

omitted). However, in doing so, the District Court must

15

demonstrate how the case before it is one with respect to

“which the Guidelines do not fully account for those factors.”

Id. (citation omitted). In Ransom, we upheld an above-

Guidelines sentence for a defendant who operated a property

management company that embezzled from its clients. The

trial judge’s in-court and written explanations for the above-

Guidelines sentence, which were “extensive and

individualized,” relied, among other things, on the fact that

Ransom was on probation for embezzlement when he

committed the offense for which he was being sentenced. Id.

at 774. On appeal, Ransom argued that in justifying the

variance on this ground, the District Court committed both

procedural and substantive error when it failed to take into

account that the Guidelines calculation included a two-point

increase because Ransom had committed the crime for which

he was being sentenced while on probation. See id. at 773,

775. We rejected Ransom’s argument because the trial

judge’s comments made plain that the two-point increase did

not account for the fact that the offense for which Ransom

was on probation involved the same type of embezzlement

scheme, committed with the same partner, as the

embezzlement scheme for which he was being sentenced. See

id. at 774, 775.

Here, in contrast, the District Court’s in-court

justification provided no explanation as to why the Guidelines

calculation applicable to Brown does not fully account for the

described criminal conduct. Nor did the District Court offer

any factual findings about Brown – no information regarding

his history or characteristics beyond that captured in the

description of his criminal conduct – on which it might have

relied to explain why the Guidelines do not fully capture

Brown’s criminal behavior. Moreover, the District Court’s in-

court explanation of the sentence included no findings with

respect to Brown’s victims that the court might have used to

16

explain why Brown’s behavior was not fully accounted for by

the recommended Guidelines range.

The District Court’s written statement is even less

informative than its in-court explanation of the above-

Guidelines sentence. This is a serious problem because the

trial judge’s in-court statement is, itself, insufficient.

It is fair to say that the two sentences offered by the trial

judge in the Statement of Reasons form are very nearly

devoid of individualization and analysis. The District Court

provides not an iota of information as to how it assessed

Brown’s conduct within the framework provided by the cited

§ 3553(a) factors. And, like the in-court justification, the

District Court’s written rationale incorporates no information

about Brown beyond a brief characterization of his criminal

conduct. Neither does the written statement include any

particularizing information regarding Brown’s victims on the

basis of which the trial judge might have justified the

conclusion that Brown’s behavior was worse than that typical

of defendants who, as part of a pattern of sexually abusing or

exploiting minors, distribute child pornography. Standing on

its own, as it must under § 3553(c)(2), the District Court’s

written statement entirely “fail[s] to discuss meaningfully the

particular defendant and his particular crime.” Akhigbe, 642

F.3d at 1087. Thus, it does not serve the “important

purpose[]” of “ensur[ing] a sentence [that] is well-

considered.” Id.

The Government suggests that the District Court may

have imposed an above-Guidelines sentence to compensate

for the “benefits” that appellant received as a result of the

declination of prosecution by Virginia authorities and the

lower Guidelines range applicable after the masochistic

materials offense characteristic was properly removed from

17

the calculation. See Gov. Br. at 21, 25-26. The District Court,

however, made no mention of these considerations in its

written statement. While the judge did reference them during

his in-court explanation, he did so only in the context of

explaining to Brown what a good deal he was getting, despite

the denial of a downward variance. See Sent. Tr., J.A. 144-45.

The trial judge never discussed the declination of prosecution

or the change in the Guidelines range within the framework of

the § 3553(a) factors, and he never stated that he was

imposing an above-Guidelines sentence because of these

considerations.

In both its in-court and written explanations, the District

Court listed the § 3553(a) factors informing its thinking and

provided a brief and unparticularized description of Brown’s

criminal conduct. But in neither statement did the court

explain (let alone explain with specificity) why Brown’s

conduct, assessed in light of the § 3553(a) factors, was more

harmful or egregious than that addressed by the properly

calculated Guidelines range. Moreover, the District Court

never in any way addressed its particular choice of a sentence

– one that exceeds the high end of the Guidelines range by 23

months and the term of imprisonment sought by the

Government by 47 months. Without an explanation of the

“‘degree of the variance,’ Gall, [552 U.S. at 50][, s]o far as

we can tell, the district judge’s choice of [144 months] was

arbitrary.” In re Sealed Case, 527 F.3d at 192. As in Akhigbe,

we find that, while the District Court’s in-court and written

statements “recite sentencing factors[,] . . . contrary to section

3553(c) and controlling case law, [those statements do not]

explain[] why those factors justified [Brown’s] particular

sentence.” Akhigbe, 642 F.3d at 1086. As such, both are

clearly insufficient and independently amount to plain error.

As we explained in Akhigbe and In re Sealed Case:

18

The district court’s failure to explain adequately the

sentence it imposed is “prejudicial in itself because it

precludes appellate review of the substantive

reasonableness of the sentence, thus seriously

affect[ing] the fairness, integrity, or public reputation

of judicial proceedings.” Furthermore, a satisfactory

statement of reasons is essential “to promote the

perception of fair sentencing” and to allow “the

public to learn why the defendant received a

particular sentence.”

Id. at 1087-88 (alteration in original) (quoting In re Sealed

Case, 527 F.3d at 193).

III. Conclusion

We hereby vacate the sentence and remand for

resentencing in adherence with the principles stated above.

SENTELLE, Senior Circuit Judge, dissenting: While I agree

with the majority’s description of the facts and history of this

case, I find that I am unable to join the majority’s conclusion.

This appears to me to be one of the not unusual cases which is

determined by the standard of review. As the majority

acknowledges, in this case the standard of review is plain error.

However, I do not agree with the majority that the application of

that standard demands reversal.

As the majority acknowledges, appellant did not preserve

the alleged errors in the district court. That is why our review

is under the plain error standard. As the majority agrees, under

that standard

appellant must show: “(1) there is in fact an error to correct;

(2) the error is plain; (3) it affects substantial rights; and (4)

it seriously affects the fairness, integrity, or public

reputation of judicial proceedings.”

Maj. Op. at 11 (quoting United States v. Akhigbe, 642 F.3d

1078, 1085-86 (D.C. Cir. 2011)).

Even conceding that appellant has shown error, I do not see

that the error is plain, affects substantial rights, or seriously

affects the fairness, integrity, or public reputation of judicial

proceedings. The errors alleged by appellant and recognized by

the majority focus on the significance or clarity of various

statements by the court in the sentencing proceedings. Granting

that these might benefit from a clearer record, that appears to me

to be precisely what the requirement for raising the error in the

court of first instance is designed to provide. That is to say, we

are giving the record only plain error review precisely because

defendant appellant did not give the trial court the opportunity

to clarify its statements at the trial level. I do not see the sort of

plainness of error that should survive the litigant’s failure to

2

provide the trial court that opportunity.

I will agree that in the broadest sense if there is an error, it

could affect substantial rights of the defendant, although a

sentence which appears sustainable upon an adequate record

may not affect those substantial rights very much. I certainly do

not see how on the complete record as it now stands, the

fairness, integrity or public reputation of the proceedings is in

danger.

Therefore, although I fully respect the concerns of my

colleagues, I cannot agree that appellant has established a right

to relief under the plain error standard.