United States v. Chad Pyles

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 20, 2016 Decided July 7, 2017

No. 14-3069

UNITED STATES OF AMERICA,

APPELLEE

v.

CHAD PYLES,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cr-00006-1)

John A. Briley Jr., appointed by the court, argued the

cause and filed the briefs for appellant.

Jennifer Loeb, Assistant U.S. Attorney, argued the cause

for appellee. On the brief were Elizabeth Trosman and Ann

K.H. Simon, Assistant U.S. Attorneys.

Before: WILKINS, Circuit Judge, and EDWARDS and

WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

Dissenting opinion filed by Senior Circuit Judge

WILLIAMS.

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WILKINS, Circuit Judge: Pursuant to the Sentencing

Reform Act of 1984, 18 U.S.C. § 3551 et seq., the District

Court must, at the time of sentencing, “state in open court the

reasons for its imposition of [a] particular sentence.” 18

U.S.C. § 3553(c). This provision mandates that the District

Court offer a “reasoned basis” for its decision and

“consider[]” all non-frivolous mitigation arguments. Rita v.

United Sates, 551 U.S. 338, 356 (2007).

Chad Pyles challenges his 132-month sentence on the

basis that the District Court did not consider each and every

one of his non-frivolous mitigation arguments before

imposing judgment. Specifically, Pyles contends that the

District Court failed to consider that: (1) Pyles’ criminal

conduct stemmed from his history of childhood abuse; and (2)

the child pornography Sentencing Guidelines do not

adequately consider the individual characteristics of each

defendant. Pyles argues that the District Court failed to

respond explicitly to these two arguments on the record, and

that such non-response should be construed as non-

consideration and, therefore, error under Rita and its progeny.

Because Pyles failed to object to the alleged non-

consideration at sentencing, though he had every opportunity,

we review his claim for plain error. FED. R. CRIM. P. 52(b).

As the Supreme Court held in Rita, the District Court is not

required to produce “a full opinion in every case,” and need

not expressly address each and every mitigation argument

advanced by the defendant. 551 U.S. at 356. Rather, so long

as the judge provides a “reasoned basis for exercising his own

legal decisionmaking authority,” we will presume that he or

she adequately considered all arguments and uphold the

sentence if it is otherwise reasonable. Id. Pyles’ claim that the

District Court is required to respond explicitly to every non-

frivolous mitigation argument appears nowhere in our

3

caselaw; indeed the exact same claim was rejected by the

Supreme Court in Rita. Accordingly, any purported error was

not “so ‘plain’ the trial judge and prosecutor were derelict in

countenancing it, even absent the defendant’s timely

assistance in detecting it,” United States v. Saro, 24 F.3d 283,

286 (D.C. Cir. 1994) (quoting United States v. Frady, 456

U.S. 152, 163 (1982)), and we find that the District Court

committed no “obvious,” or plain, error in this case. United

States v. Olano, 507 U.S. 725, 734 (1993).

I.

The facts of this case mirror the oft-told news story of an

undercover detective who uses an online chat room to thwart

the sexual abuse of minors. In August and September 2013,

Pyles communicated with Timothy Palchak, an undercover

Metropolitan Police Detective (the “Detective”), regarding

Pyles’ sexual interest in minors. During e-mail conversations,

Pyles distributed over the Internet five images of child

pornography, three of which were sadomasochistic in nature.

Later, Pyles and the Detective agreed to meet and have sex

with two underage girls. Pyles traveled interstate to

Washington, D.C. for this purpose, where he was promptly

arrested. A consent search of Pyles’ computer revealed four

additional videos of child pornography. In light of this

evidence, the Government charged Pyles with two counts of

criminal conduct: (1) traveling with intent to engage in illicit

sexual acts in violation of 18 U.S.C. § 2423(b); and (2)

knowingly distributing child pornography in violation of 18

U.S.C. § 2252A(a)(5)(B). 1

1

On February 20, 2014, the parties entered into a plea bargain in

which Pyles’ charge for knowingly distributing child pornography

was reduced to one count of possession of child pornography.

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After reviewing the case, the District Court ordered Pyles

to undergo psychological and psychosexual examination to

determine if he was a pedophile and to gauge his propensity

for recidivism. The psychologist diagnosed Pyles with

pedophilia on a provisional basis, severe substance use

disorder, and antisocial personality disorder. In particular, the

psychologist explained that Pyles refused to acknowledge he

had a problem or needed treatment, and downplayed the

severity of his actions. With regard to Pyles’ risk of

recidivism, the psychologist noted that if Pyles participated in

and completed a substance abuse program and a sex offender

treatment program, his likelihood of recidivism was low.

However, a failure to start or complete either of the programs

would result in a moderate to high risk of recidivism.

Following the psychological exam, the District Court

convened a sentencing hearing on September 30, 2014. The

parties jointly recommended a sentence of 87 months

imprisonment. This recommendation, however, was based on

a miscalculation during plea negotiations of Pyles’ offense

level at 28, which corresponds to an incarceration term of 78

to 97 months under the United States Sentencing Guidelines.

When the District Court identified the proper offense level,

the parties agreed that the revised Guidelines range was 108-

to 135-months’ imprisonment. Nonetheless, the parties

continued to advocate for an 87-month term. In particular,

Pyles presented six mitigation arguments, including the two at

issue in this case: (1) the Sentencing Guidelines arbitrarily

increased the base offense levels and enhancements for child

pornography without taking into account individualized

conduct; and (2) as a child, Pyles was subjected to adult

pornography and was sexually abused by older teenagers.

The District Court, however, was unconvinced that a

below-Guidelines sentence should apply. When the parties

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recommended 87-months’ imprisonment, the District Court

noted that this would be a downward variance, which was an

“extraordinary request.” J.A. 122. Specifically, the judge

explained that “the variance downward has to be consistent

with the [section] 3553 factors” and, given the facts, he was

“hard-pressed to see how that could possibly be the case

here.” J.A. 115; see 18 U.S.C. § 3553(a).

In particular, the judge cautioned that the seriousness of

Pyles’ behavior should not be taken lightly, especially given

Pyles’ willingness to use the Internet for pornography and

sexual communications, and physically travel to have sexual

intercourse with a minor. The judge also referenced the

sadomasochistic images and videos contained on Pyles’

computer. Further, the judge noted that Pyles’ decision to

plead guilty was only because he had been caught “red-

handed,” and the Government offered him a “huge break” by

reducing his charge from distribution of pornographic

material to possession. The judge also cited the “distressing”

nature of the psychiatric report and, in particular, the fact that

Pyles refused to acknowledge that he has a problem and needs

treatment. The judge concluded that Pyles’ refusal to engage

in sex offender management programs at the prison increased

his risk for recidivism from low to moderate/high.

Moreover, the District Court expressed skepticism

towards Pyles’ Sentencing Guidelines argument. Pyles

claimed that the child pornography guidelines, U.S.S.G. §

2G2.2, arbitrarily increased the base offense levels and

enhancements for defendants regardless of their individual

characteristics and the severity of each crime. However,

contrary to Pyles’ contentions, the District Court did not

reflexively rely on the Guidelines range, but rather evaluated

Pyles’ specific conduct and the risk that he posed to the

community. Indeed, the Government conceded at the hearing

6

that this was quite a serious case, and that “[w]hen someone

travels, acts on these urges, travels interstate to have sex with

the child, . . . there’s no reason to vary from the guidelines.”

J.A. 117. Thus, the Government noted that while there might

be a legitimate argument that the child pornography

guidelines were too high in some circumstances, the

guidelines for the travel count were “too low.” J.A. 119. This

concession prompted the judge to respond that the Guidelines

argument supported, at best, a sentence of 108 months – the

bottom of the applicable Guidelines range – but that it was

“not an argument” that would support going below the

Guidelines range to 87 months. Later, the judge added that the

criticisms of the child pornography guidelines were weak in

this case where Pyles’ offense involved images of

prepubescent children, sadomasochistic images, and

distribution of images rather than mere possession.

Accordingly, the judge imposed a sentence of 132-months

imprisonment.

Pyles appealed the District Court’s sentence on October

15, 2014. His primary argument on appeal is that the District

Court provided no explanation regarding its rejection of his

mitigation arguments. Rather, Pyles contends, the District

Court improperly focused on the seriousness of the offense

and the need for punishment. We have jurisdiction to review

this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a).

II.

Our review raises two interrelated questions. First, did

Pyles sufficiently preserve his claim of error to trigger abuse

of discretion review, or is our analysis limited to plain error?

Unsurprisingly, Pyles argues that the correct standard is abuse

of discretion, Appellant Br. 7-8, while the Government

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contends that this Court’s review is restricted to plain error,

Appellee Br. 18. As explained below, we find that the

appropriate standard is plain error. Second, was there plain

error? Because we find that Pyles has not shown that it was an

obvious error for the District Court to fail to expressly state

that all of Pyles’ mitigation arguments were appropriately

considered but nonetheless rejected, we find no plain error.

A.

The correct standard of review in this case hinges on

whether Pyles timely objected to the District Court’s

sentencing ruling. Where a sentencing violation has been

properly preserved, this Court reviews the sentencing

determination for abuse of discretion. See United States v.

Locke, 664 F.3d 353, 356 (D.C. Cir. 2011). A defendant’s

failure to timely raise a procedural violation at sentencing

results in appellate review for plain error. United States v.

Bigley, 786 F.3d 11, 13 (D.C. Cir. 2015). Pursuant to the plain

error standard, Pyles must demonstrate that the District Court

committed an “obvious” or “clear” error that affects his

substantial rights. Olano, 507 U.S. at 734. An error affects a

defendant’s substantial rights if it is prejudicial, United States

v. Simpson, 430 F.3d 1177, 1183 (D.C. Cir. 2005), and

seriously impacts “the fairness, integrity, or public reputation

of judicial proceedings,” Locke, 664 F.3d at 357.

In the context of an asserted procedural error for failure

to consider a non-frivolous mitigation argument, our

precedent requires that the defendant state his objection on

the record at sentencing. In Locke, this Court held that

because the defendant “did not challenge the adequacy of the

district court’s statement of reasons below, we review her

claim for plain error.” 664 F.3d at 357. It was not enough for

the defendant to simply state her non-frivolous mitigation

8

argument on the record; rather, when the District Court

imposed its sentence and did not reference this argument, the

defendant had an affirmative duty to object if she believed

that the argument had not been given fair consideration.

Because the District Court gave the defendant “ample

opportunity to object” when it asked the parties if they “know

of any reason other than reasons already stated and argued

why the sentence should not be imposed,” and defense

counsel simply replied “[n]othing else, [y]our Honor,” plain

error review was appropriate. Id. (alterations in original). We

have consistently followed that approach. See United States v.

Hunter, 809 F.3d 677, 683 (D.C. Cir. 2016) (“Locke describes

the best procedure for district judges to follow—after

sentencing the judge should ask if there are any objections to

the sentence imposed not already on the record.”); United

States v. Mack, 841 F.3d 514, 518 (D.C. Cir. 2016) (applying

plain error review where defendant asserted on appeal that

District Court failed to consider his sentencing manipulation

argument, but no objection was made even though “the trial

judge asked appellant’s counsel on two occasions whether

there was any reason why the court should not impose the

sentence on the terms indicated”).

The circumstances of this appeal mirror those of Locke,

Hunter, and Mack. After pronouncing the sentence, the

District Court asked defense counsel if he had any questions,

and counsel requested that the court recommend a prison

placement for Pyles. The District Court agreed, and then

asked whether there was “anything else,” prompting defense

counsel to request that the court recommend substance abuse

treatment during incarceration. The District Court agreed to

recommend that Pyles be evaluated for such treatment and

again asked “anything else?” and defense counsel responded

“no.” J.A. 148-50. Thus, despite three explicit invitations to

do so, Pyles did not challenge the adequacy of the District

9

Court’s consideration of his mitigation arguments or the

District Court’s explanation of its sentence.

Citing United States v. Tate, 630 F.3d 194 (D.C. Cir.

2011), our dissenting colleague contends that we are violating

precedent and that there is an “intra-circuit conflict” in our

cases involving the preservation requirements for alleged

procedural error during sentencing. Dissent Op. 4. Not so.

Tate was a procedural error case, but it was not a “failure to

consider” procedural error case. In Tate, the defendant faulted

the District Court for mistakenly believing that the 2007

amendment to the crack guideline had reduced the crack-to-

powder disparity from 100 to 1 to a disparity of around 20 to

1, when, in actuality, the 2007 amendment brought the

disparity to 70 to 1 as applied to Tate’s offense level. 630

F.3d at 197. The alleged error in Tate was that the District

Court incorrectly considered the sentencing mitigation

argument, not that the court had failed to consider the

argument at all. As we have previously explained, “unnoticed

errors of the sort characterized by the Supreme Court in Gall

as procedural ‘such as . . . failing to consider the § 3553(a)

factors’ . . . would normally be reviewed for plain error.”

United States v. Russell, 600 F.3d 631, 633–34 (D.C. Cir.

2010) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).

The distinction is important. Where either the defense or

prosecution believe that the trial court has overlooked an

argument in favor of mitigating or enhancing the sentence, we

should “induce the timely raising of claims and objections,

which gives the district court the opportunity to consider and

resolve them,” and thereby “correct or avoid the mistake so

that it cannot possibly affect the ultimate outcome.” Puckett

v. United States, 556 U.S. 129, 134 (2009). Requiring a

contemporaneous objection to a failure of consideration “is

neither pointless nor ‘formulaic,’” Hunter, 809 F.3d at 683,

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because “a clear objection can enable a trial court to correct

possible error in short order and without the need for an

appeal,” id. (quoting United States v. Bennett, 698 F.3d 194,

199 (4th Cir. 2012)).

Therefore, in accordance with our precedent, because

appellant raised no objection to his sentence despite three

opportunities to do so, we review the asserted procedural

violation in this case for plain error. Hunter, 809 F.3d at 683

(using plain error review when appellants raised no objection

even though District Court asked them if there were “any

additional questions” after imposing sentence).

B.

Having discerned the standard of review, we must next

determine whether the District Court committed plain error by

failing to explain its rejection of each mitigation argument on

the record. We find that it did not.

To give rise to plain error, the error must have been

“obvious,” meaning that “the error is clear under current

law.” Olano, 507 U.S. at 734; see also Henderson v. United

States, 133 S. Ct. 1121, 1124-25 (2013) (“[A]s long as the

error was plain as of . . . the time of appellate review . . . the

error is ‘plain’ within the meaning of the Rule.”). Stated

differently, “[a]bsent controlling precedent on the issue or

some other ‘absolutely clear’ legal norm, the district court

committed no plain error.” United States v. Nwoye, 663 F.3d

460, 466 (D.C. Cir. 2011) (quoting In re Sealed Case, 573

F.3d 844, 851 (D.C. Cir. 2009)).

The holdings of the Supreme Court and this Court state

that when presented with non-frivolous arguments for

mitigation, the District Court must consider those arguments

before imposing the sentence. Bigley, 786 F.3d at 12, 14. In

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addition to considering any mitigation arguments, the District

Court must provide a “reasoned basis” when announcing its

sentencing decision. Locke, 664 F.3d at 357. These standards,

however, do not require the District Court to individually and

expressly address every non-frivolous argument advanced by

a defendant on the record. Id. Rather, “so long as the judge

provides a ‘reasoned basis for exercising his own legal

decisionmaking authority,’ we generally presume that he

adequately considered the arguments and will uphold the

sentence if it is otherwise reasonable.” Id. at 358 (quoting

Rita, 551 U.S. at 356). Where the record makes clear that the

judge considered and evaluated a defendant’s arguments, the

presumption of procedural reasonableness will be upheld. Id.

In Locke, the defendant similarly challenged his sentence

on the basis that the District Court failed to consider two

mitigation arguments. Id. at 354. The record in Locke,

however, clearly evidenced an extended colloquy between the

District Court and Locke’s counsel regarding the defendant’s

refusal to cooperate with the Government. Id. at 358.

Following this discussion, the District Court offered a well-

reasoned basis for its decision. In particular, “[a]fter outlining

the seriousness of the offense, the length of the conspiracy,

the ‘significant role’ played by Locke and [the District

Court’s] doubts about her remorse, [the judge] concluded that

a ‘substantial period of incarceration’ was warranted.” Id.

This Court found no plain error even though the judge did not

address every mitigation argument offered by the defendant.

The holding of Locke flowed from the guidance of Rita,

where the Supreme Court refused to require district court

judges to write full opinions for every sentencing decision.

551 U.S. at 356. The Supreme Court stated that the length and

detail of a judge’s sentencing explanation, along with his

decision to respond to or ignore certain arguments should be

12

left “to the judge’s own professional judgment.” Id. A

sentencing judge need only set forth enough facts and

analysis “to satisfy the appellate court that he has considered

the parties’ arguments and has a reasoned basis for exercising

his own legal decisionmaking authority.” Id. If a judge is

merely applying the Sentencing Guidelines to a particular

case, his actions do not require a lengthy explanation. Id.

Therefore, where a judge listens to arguments for mitigation,

considers the supporting evidence, and finds that the

circumstances do not warrant a below-Guidelines sentence,

then “context and the record make clear” that the judge

considered each argument. Id. at 358-59. Citing Rita and

Locke, we recently explained that while non-frivolous

mitigation arguments must always be considered, we “do not

require the court to expressly address every argument

advanced by a defendant” when imposing a sentence. United

States v. Borda, 848 F.3d 1044, 1071 (D.C. Cir. 2017),

petition for cert. filed, No. 16-1396 (May 23, 2017).

The fact that we are reviewing a within-Guidelines

sentence also impacts the analysis. In United States v.

Brinson-Scott, we cited Rita for the proposition that “[w]here,

as here, the district judge pronounces a within-Guidelines

sentence . . . little explanation is required.” 714 F.3d 616, 625

(D.C. Cir. 2013); see also Rita, 551 U.S. at 356 (“[W]hen a

judge decides simply to apply the Guidelines to a particular

case, doing so will not necessarily require lengthy

explanation.”). Comparably, in United States v. Akhigbe, we

noted that, “[i]n many cases, such as where the parties have

presented only ‘straightforward, conceptually simple

arguments’ and the district court concludes a Guidelines

sentence is appropriate, a fairly brief recitation of reasons will

satisfy the court’s procedural obligations.” 642 F.3d 1078,

1087 (D.C. Cir. 2011) (quoting Rita, 551 U.S. at 356). Other

circuits have construed Rita similarly, noting that “[l]ess

13

explanation is typically needed when a district court sentences

within an advisory guidelines range.” United States v. Harris,

567 F.3d 846, 854 (7th Cir. 2009).

The dissent contends that Rita requires that the District

Court must not only “consider” all non-frivolous mitigation

arguments, but also “acknowledge” or “respond” to every

non-frivolous argument on the record. Dissent Op. at 10-11.

But this supposed requirement for an explicit response

appears nowhere in the Supreme Court’s opinion, even

though the Petitioner in Rita argued that “district courts must

articulate their consideration of all factors relevant to

judgment,” and that it was error to “impos[e] sentence

without articulating, on the record, its consideration of the

factors enumerated in 18 U.S.C. § 3553(a), as plainly required

by [18 U.S.C.] § 3553(c).” Brief for Pet’r at 5, 42-43, Rita v.

United States, 551 U.S. 338 (2007) (No. 06-5754). The

Supreme Court declined the Petitioner’s invitation to go this

far, and instead required only that the district courts consider

all non-frivolous mitigation arguments and articulate merely a

“reasoned basis” for the sentence. Rita, 551 U.S. at 356.

The dissent ignores the holding as pronounced in Rita,

and further ignores the fact that the Supreme Court refused

Petitioner’s demand that the district court “articulate” all

factors considered. Instead, the dissent reads between the

lines to assert that when the Supreme Court used the word

“consider,” it really meant “acknowledge and consider.” But

as explained above, we have not described Rita as requiring

such an express acknowledgement in every single case, and

notwithstanding the dissent’s efforts to manufacture a circuit

split, neither have our sister circuits. Indeed, the First Circuit

has held that where mitigating arguments were “thoroughly

discussed in the presentence report; that the district court did

not explicitly mention them during the sentencing hearing

14

suggests they were unconvincing, not ignored.” United States

v. Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012). Thus,

to the extent that out-of-circuit cases are even relevant in the

plain error context, they fail to establish a “clear” and

“obvious” uniform rule that district judges must always

acknowledge every non-frivolous mitigation argument during

sentencing. See, e.g., id. (“Though we require consideration

of the § 3553(a) factors, we do not require an express

weighing of mitigating and aggravating factors or that each

factor be individually mentioned.”); United States v. Chiolo,

643 F.3d 177, 182 (6th Cir. 2011) (“Chiolo claims that his

sentence was procedurally unreasonable because the district

court did not address several of his non-frivolous arguments .

. . . While it is true that the court did not expressly address

these arguments, Chiolo demands a degree of formalism

which the law does not require.”); United States v. Paige, 611

F.3d 397, 398 (7th Cir. 2010) (“Even if the judge did not

adequately address these arguments, we regularly affirm

sentences where the district judge does not explicitly mention

each mitigation argument raised by the defendant.”); United

States v. Gasaway, 684 F.3d 804, 807 (8th Cir. 2012)

(“Gasaway is correct that the district court did not . . . directly

address Gasaway’s difficult life or alcohol problems.

However, the court stated it had considered all of the

sentencing factors, and it is clear from the record that the

court was on notice of Gasaway’s mitigating life

circumstances. In sentencing a defendant, ‘it is often enough

that a judge only reference some of the factors.’”) (quoting

United States v. McGlothen, 556 F.3d 698, 702 (8th Cir.

2009)); United States v. Perez-Perez, 512 F.3d 514, 516 (9th

Cir. 2008) (“[T]he sentencing judge expressly based the

within-guidelines sentence on the defendant’s extensive

criminal history and the need for deterrence, while apparently

considering—without explicit reference—Perez-Perez’s

mitigation arguments. That the defense’s arguments were

15

considered is clear from the transcript of the sentencing

proceeding, during which the district court actively

questioned and engaged the defense. This is sufficient under

the Supreme Court’s decision in Rita and this Court’s earlier

authority.”); United States v. Amedeo, 487 F.3d 823, 833

(11th Cir. 2007) (“[A]lthough the district court’s sentencing

order made no mention of evidence that arguably mitigated in

Amedeo’s favor under § 3553(a), we cannot say that the

court’s failure to discuss this ‘mitigating’ evidence means that

the court erroneously ‘ignored’ or failed to consider this

evidence in determining Amedeo’s sentence.”).

Thus, the precedent regarding mitigation arguments

follows the precedent relating to the § 3553(a) factors – the

District Court must consider the argument, but that does not

equate to a mandate that such consideration must be spelled

out on the record. See Simpson, 430 F.3d at 1186 (“It is true

that the district court did not specifically refer to each factor

listed in § 3553(a). But we have not required courts to do

so.”); United States v. Warren, 700 F.3d 528, 533 (D.C. Cir.

2012) (rejecting the argument “that the court erred by failing

to explicitly refer to each section 3553(a) factor”). “As this

Court has said many times, there is no requirement that

sentencing courts expressly list or discuss every Section

3553(a) factor at the sentencing hearing.” United States v.

Knight, 824 F.3d 1105, 1110 (D.C. Cir. 2016). Indeed, we

have upheld a sentence even where “the district court’s

explanation did not invoke any of the section 3553(a) factors

by name. But we do not require that it do so. Sentencing, after

all, is not a game of Simon Says.” Brinson-Scott, 714 F.3d at

626 (emphasis added). The same is true for mitigation

arguments, and the dissent is mistaken to contend otherwise.

Applying these principles to the present appeal, we

cannot say that the District Court plainly erred by not

16

explicitly addressing each of Pyles’ mitigation arguments. A

trial judge may hear, understand, and weigh a defendant’s

non-frivolous argument even though the judge does not fully

and explicitly address that precise argument on the record.

Context matters. If a trial judge states a reasonable decision in

support of sentencing and that decision obviously forecloses

an objection raised by the defendant, we need to be very

cautious before concluding that the judge has failed to give

due consideration to the non-frivolous objection. The

dissent’s categorical rejection of implicit consideration is

misguided. In Gall, the Supreme Court rejected the contention

that the district court failed to consider the need to avoid

unwarranted sentencing disparities, where the district judge

did not explicitly weigh this factor when he imposed a

probationary sentence even though the Guidelines range was

30-37 months imprisonment. 552 U.S. at 52-56. The Court

found that the factor was implicitly considered because

“avoidance of unwarranted disparities was clearly considered

by the Sentencing Commission when setting the Guidelines

ranges. Since the District Judge correctly calculated and

carefully reviewed the Guidelines range, he necessarily gave

significant weight and consideration to the need to avoid

unwarranted disparities.” Id. at 54.

In this case, several factors from the record and

surrounding context – in addition to the detailed explanation

for the sentence described above – make it clear that the judge

considered and implicitly rejected Pyles’ contentions before

rendering a within-Guidelines sentence based on the judge’s

reasoned decisionmaking. The precedent of the Supreme

Court and our Court requires nothing more.

First, the judge explicitly stated on the record that he

spent a “considerable amount of time” reviewing the

materials in this case, including Pyles’ sentencing

17

memorandum. Indeed, based upon this review, the judge felt

that an important piece of information was missing, and

ordered Pyles to undergo a psychiatric evaluation. The judge

then convened a hearing on September 9, 2014, to review the

results of the evaluation, and allowed the parties to submit

supplemental briefing. The judge further delayed the

sentencing hearing to get his glasses repaired so he could read

everything. During the hearing, the judge referred to the

written materials several times, and even read portions of the

psychological report to the prosecutor and defense counsel to

get their responses. Given this record, it would be entirely

unfair to conclude that the District Court did not read and

consider the contentions made in the written submissions,

including the various arguments in favor of mitigation. See

United States v. Carty, 520 F.3d 985, 995-96 (9th Cir. 2008)

(en banc) (rejecting the argument that “because the district

court did not affirmatively state that it considered the §

3553(a) factors, we should assume that it did not,” since “the

judge stated that he reviewed the papers; the papers discussed

the applicability of § 3553(a) factors; therefore, we take it that

the judge considered the relevant factors”).

Second, the district judge interacted frequently with the

prosecutor, defense counsel, and Pyles during each of their

allocutions, which demonstrates that he was listening to what

they were saying. The dissent suggests that we should

conclude that the judge did not consider Pyles’ argument for a

variance because he expressed skepticism during the

prosecutor’s allocution and before hearing from the defense,

but there is no valid reason to presume that a judge who

expresses a tentative view of the sentence refused to consider

all arguments made thereafter. It has long been established

that “[a] judge . . . may make a preliminary determination

about the sentence in his own mind before hearing the

defendant’s allocution.” United States v. Mata-Grullon, 887

18

F.2d 23, 25 (1st Cir. 1989) (per curiam); see also United

States v. Margiotti, 85 F.3d 100, 103 (2d Cir. 1996); United

States v. Wolfe, 71 F.3d 611, 614-15 (6th Cir. 1995); United

States v. Laverne, 963 F.2d 235, 237 (9th Cir. 1992). Such a

presumption of non-consideration would be entirely unfair

here, where the district judge acknowledged when stating his

tentative views that defense counsel had not yet made his

argument and he did not want to “steal [counsel’s] thunder.”

J.A. 119. Furthermore, we have never held that a District

Court’s response to a non-frivolous mitigation argument must

be raised solely with defense counsel. If the Government and

defendant present similar arguments for mitigation, the

District Court’s response to either party will be sufficient to

show it considered the argument. The fact that the District

Court addressed this argument with the Government’s lawyer

does not expunge the consideration of the issue.

Third, the district judge explicitly sought to hear Pyles’

mitigation arguments, as he asked defense counsel to “give

me your best argument for [a] downward variance” at the

beginning of his presentation. J.A. 122. The District Court

allowed defense counsel and Mr. Pyles to make lengthy

statements; indeed, the sentencing hearing lasted nearly an

hour, longer than most of our oral arguments. Unlike the

dissent, we are unwilling to find that the district judge failed

to consider the precise arguments that he listened to for a very

long time and expressly asked to hear.

Fourth, context makes clear why the District Court

rejected Pyles’ Sentencing Guidelines argument. Given that

both Pyles and the Government raised issues with the

Sentencing Guidelines in their memoranda, the District Court

found it pertinent to discuss this concern at the beginning of

the hearing. The Government acknowledged that “[t]he

conduct in this case is very, very serious,” and explained that

19

“you have child pornography on one side, where there’s all

kind of argument on one side what the guidelines should be.

But you have travel on the other side, where there, frankly, is

no argument.” J.A. 117. The District Court responded by

explaining that Pyles had already received a huge break in

how he was charged because simple possession of

pornographic material does not carry a mandatory minimum

sentence. After further discussion, the Government noted that

“[s]ometimes the Guidelines are possibly much higher than

the conduct or much more serious than the conduct, and

sometimes they’re lower. Frankly, in the case of a travel only

. . . it’s too low. Sometimes when it’s involving child

pornography only, it’s too high.” J.A. 119. The judge

explained that this argument could not result in a downward

variance in this case. Later, the District Court responded to

defense counsel’s arguments about the relative seriousness of

the travel count versus the child pornography count and their

respective Guidelines levels, stating that the Guidelines

enhancement for sadomasochistic images was appropriate and

rejecting the argument that the child pornography Guideline

range should be less than the Guideline range for the travel

count. Finally, after hearing from both defense counsel and

Pyles, the judge stated “obscene materials are not all the

same, some are worse than others, and that’s why we have

points in this patchwork quilt of calculations that the

guidelines engage in,” and announced his conclusion that a

sentence at the upper range of the Guidelines was warranted

because the images in this case involved prepubescent

children, sadomasochistic images, and were not just

possessed, but also distributed, by Pyles. J.A. 142-43. Thus,

it is quite evident that the District Court read, listened to, and

considered the mitigation arguments based upon the alleged

excessive enhancements of the child pornography Guidelines.

20

Fifth, with regard to the District Court’s alleged failure to

consider Pyles’ history of sexual abuse, we note that Pyles’

childhood sexual abuse was discussed in the presentence

report, Pyles’ sentencing memorandum, and the psychological

evaluation, all of which the District Court read. Indeed, it

was only after reviewing the presentence report and

sentencing memoranda that the District Court, on its own

volition, ordered Pyles to undergo psychological testing. The

District Court then permitted additional briefing by the parties

to address the findings in the psychological report. It would

be puzzling to hold that the District Court did not consider the

history of sexual abuse described in a report that the judge

specifically requested. Rather, it is both fair and reasonable

to presume that a judge read and considered information that

he specifically sought out. The opposite presumption,

embraced by the dissent, seems much more dubious.

The District Court’s discussion of Pyles’ drug abuse is

also relevant on this point. Pyles blamed his pedophilia on

his drug usage and, in turn, he blamed his drug usage on his

sexual abuse as a child. Thus, Pyles’ drug use was

inextricably intertwined with his history of sexual abuse. The

District Court directly acknowledged Pyles’ drug usage on the

record, so it is hard to conceive how the District Court could

have considered the drug abuse without also considering the

mitigating factor that supposedly begat the drug abuse. While

an explicit response to the sexual abuse argument would have

been advisable, the context shows that the argument was

considered.

Sixth, in addition to what was said during the formal

pronouncement of sentence, the District Court made several

statements throughout the sentencing hearing that explained

its reasoning. The District Court took issue with Pyles’

minimization of his crimes, the severity of the conduct,

21

including interstate travel and possession of sadomasochistic

images, and Pyles’ unwillingness to participate in sex

offender treatment. Specifically, the judge explained that

Pyles’ risk of recidivism increased to moderate/high because

of his refusal to undergo treatment, and that Pyles simply

blamed drug usage for his pedophilia. The District Court also

stressed its obligation to punish and deter Pyles and others

from committing this crime in the future, along with the need

to protect the community. The judge’s decision was further

based on the fact that Pyles already received a “huge break”

because he pled guilty to simple possession of pornography,

not distribution, and that his acceptance of guilt was only

because he had been caught “red-handed” and had no

legitimate defense. The District Court’s explanation of these

factors at the sentencing hearing provides a well-reasoned

basis for rejecting the arguments for a downward variance.

The judge’s reasoning suggests that he considered all

appropriate circumstances and imposed a sentence that would

achieve the goals of individual and general deterrence,

adequate punishment, and protection of the community.

In summary, our precedent requires the District Court to

consider each and every non-frivolous argument for

mitigation, but does not require the judge to address expressly

each argument on the record when pronouncing the sentence.

Our review, particularly in the plain error context, is for

“significant procedural error,” Gall, 552 U.S. at 51, rather

than for fastidious compliance with protocol. Express

acknowledgment of mitigation arguments is of course helpful

and encouraged, but it is not required in every instance. The

record and context of this case make clear that the judge did

not violate any of the settled standards set forth in Rita and

Locke when he imposed a within-Guidelines sentence, and

there is enough in the record to allow for meaningful

22

appellate review. Accordingly, we find no plain error. The

judgment is affirmed.

So ordered.

WILLIAMS, Senior Circuit Judge, dissenting: My

colleagues recognize that a sentencing court “must consider”

any “non-frivolous arguments for mitigation” that a defendant

presents. Maj. Op. at 10 (citing United States v. Bigley, 786

F.3d 11, 12, 14 (D.C. Cir. 2015)). But confronted with a record

that fails to show such consideration, the majority is content

with evidence that the judge spoke reasonably about the issues

he did address. This accommodating test effectively eliminates

the requirement of considering nonfrivolous arguments.

Because the record offers no hint that the district court even

listened to—let alone considered—two important arguments

before it, I respectfully dissent.

The record shows the district court batting down several

arguments for leniency, but these were government arguments,

not Pyles’s. The prosecutor urged the district court to sentence

below the bottom of the corrected Guidelines range (108-135

months). Sentencing Tr. at 4-5. (The plea agreement had stated

a range of 78-97 months, having assumed the wrong criminal

history category and left out a distribution enhancement.) The

government joined Pyles in suggesting an intermediate range

of 87-108 months, based on correcting the criminal history

category but not applying the enhancement. See id. at 3-5, 15;

Gov’t Sentencing Mem. at 2-3 (“Gov’t Mem.”). Both sides

requested a sentence at the very bottom of the intermediate

range—87 months. See Sentencing Tr. at 4-5, 15; see also

Gov’t Mem. at 2-3. Citing his own experience from having

“handled these cases [] exclusively for a number of years,” the

prosecutor enumerated reasons for leniency: the mistake in the

agreement; “the relatively small amount of child pornography;”

and the immediate cooperation on Pyles’s part. Sentencing Tr.

at 4-6, 8. Given these mitigating circumstances, the prosecutor

urged that the intermediate range of 87-108 was “where the

guidelines are most appropriate.” Id. at 9.

2

The district court countered the prosecutor’s points. Id. at

4-10. We may assume that its dispatch of them was adequate.

But that tells us nothing about the two separate arguments for a

variance raised by Pyles’s counsel. As to these, the court

uttered not the slightest acknowledgement. First, Pyles had

been sexually abused and exposed to pornography as a child;

counsel presented these events as a key source of his mental

health problems, drug addiction, and criminal behavior,

culminating in the current charges. See id. at 20-21;

Defendant’s Sentencing Mem. at 14 (“Defendant’s Mem.”).

Second, as the Sentencing Commission had acknowledged, the

child pornography Guidelines are rife with enhancements for

circumstances that almost invariably accompany a child

pornography conviction, including Pyles’s (e.g., use of a

computer, sadomasochistic images), thereby inflating the range

and eliding meaningful distinctions of culpability. See

Sentencing Tr. at 13-15, 19-20, 25; see also U.S. Sentencing

Commission, Federal Child Pornography Offenses iii & n.14

(2012) (“Commission Report”); id. at 313 (“[E]nhancements

that were intended to apply to only certain offenders who

committed aggravated child pornography offenses are now

being applied routinely to most offenders.”).

Whenever defense counsel raised these contentions the

district court moved on without discussing them or even

signaling recognition; counsel would circle back to his variance

request, but never succeeded in engaging the court’s focus.

Before counsel had even finished his opening argument about

the Guidelines’ inadequacies, see Sentencing Tr. at 13-15, the

court interrupted, “Hold on,” and launched into discussions of

the relative seriousness of Pyles’s two charges, of public safety,

and of why probation (which no party had requested) was

inappropriate, id. at 15-18. Counsel attempted to reorient the

discussion, explaining how even the Sentencing Commission

was “in doubt” over U.S.S.G. § 2G2.2 and how Pyles deserved

a variance based on the traumatic abuse he had suffered. Id. at

3

19-21. Counsel then turned to the skepticism about Pyles’s

possible rehabilitation that the court had expressed in colloquy

with the government; he urged that with therapy, Pyles could

“succe[ed].” Id. at 21-22. Instead of responding directly to

Pyles’s two main arguments, the court launched into a denial of

the possibility of therapy—there was, said the court, “no basis

. . . to believe that [Pyles] would engage in” sex offender

treatment, id. at 22—a denial that was, as we’ll soon see, a

radical oversimplification of the record. Counsel responded to

the court’s concern and then returned to the variance request,

which he bolstered with the Sentencing Commission’s own

statements and relevant Supreme Court precedents. Id. at 23-

26. Signaling that it thought counsel had been talking for long

enough, the court asked Pyles if he wished to speak. Id. at 26.

The court ultimately sentenced Pyles to 132 months (eleven

years), three months short of the corrected Guidelines

maximum.

The record, including the district court’s oblique and in

part mistaken comments, reflects no consideration of either of

counsel’s “‘nonfrivolous reasons’ . . . for an alternative

sentence”—consideration required by our and the Supreme

Court’s cases. See United States v. Locke, 664 F.3d 353, 357

(D.C. Cir. 2011) (quoting Rita v. United States, 551 U.S. 338,

356-57 (2007)). Until now, we have enforced this procedural

requirement without hesitation. See Bigley, 786 F.3d at 14

(reversing below-Guidelines sentence for failure to consider

nonfrivolous argument); see also United States v. McKeever,

824 F.3d 1113, 1125-26 (D.C. Cir. 2016) (remanding within-

Guidelines sentence for failure to consider nonfrivolous

argument). In dispensing with this requirement, or at best

skating over its violation, the panel breaks from precedent.

Our disagreement begins with the standard of review.

Pyles’s counsel raised his requests for leniency multiple times

despite the court’s apparent unwillingness to hear them. But

4

because counsel never objected that his repeated arguments had

gone unheeded, my colleagues believe the error must be viewed

through the plain error lens rather than abuse of discretion.

Their decision embraces one side of an intra-circuit conflict

while obscuring the other. They rely on Locke, where we said

an objection was required to preserve a claim that nonfrivolous

arguments went unconsidered. 664 F.3d at 356-57; accord

United States v. Mack, 841 F.3d 514, 525 (D.C. Cir. 2016). But

we had earlier held in indistinguishable circumstances that a

defendant need only “inform the [district] court . . . of the ruling

he wants the district court to make and the ground for so doing.”

United States v. Tate, 630 F.3d 194, 197 (D.C. Cir. 2011)

(quoting United States v. Rashad, 396 F.3d 398, 401 (D.C. Cir.

2005)); see also id. at 198 (“Having stated the facts and the law

regarding the [sentencing argument] and having requested that

the district court exercise its discretion . . . , counsel preserved

Tate’s . . . claims of error and counsel was not obligated to

object . . . .”). Judges in the Third Circuit have rightly

described our precedents on this issue as “internally

inconsistent.” United States v. Flores-Mejia, 759 F.3d 253, 260

n.1 (3d Cir. 2014) (en banc) (Greenaway, Smith, Shwartz &

Sloviter, JJ., dissenting).

My colleagues distinguish Tate with the observation that

one of the claimed procedural errors involved a misstatement

rather than an omission. Maj. Op. at 9. This fails twice. First,

my colleagues offer no reason to find the difference meaningful

for this issue. Second, Tate applied its no-need-to-object rule

to another claimed error almost identical to the one in dispute

here: that the sentencing judge “fail[ed] to appreciate” an

argument to vary downward based on policy disagreement with

the Guidelines. Tate, 630 F.3d at 199-200. The government

asserted the necessity of a post-sentence objection, but we flatly

rejected the idea. Id. at 197-98. We applied abuse of discretion

review and affirmed the sentence because the judge had in fact

5

acknowledged the policy problems in the Guidelines and

“recognized that it had discretion to vary.” Id. at 200.

Further, as applied in these circumstances, where counsel

has repeatedly had his points brushed off, he might well feel

that he’d look like an idiot, or be seen as trying to make the

court look like an idiot, if he larded the record with the obvious

point that he wished his arguments to be evaluated. See United

States v. Lynn, 592 F.3d 572, 578-79 & n.3 (4th Cir. 2010)

(reasoning that it would be a “drain on district-court time” to

require post-sentence procedural objections and that “[b]y

drawing arguments from § 3553 for a sentence different than

the one ultimately imposed, an aggrieved party sufficiently . . .

preserves its claim”); see also United States v. Bonilla, 463 F.3d

1176, 1181 (11th Cir. 2006) (“The question of whether a

district court” adequately explained its sentence “is reviewed

de novo, even if the defendant did not object below”).

But of my disagreements with the majority, this one is the

least consequential for Pyles: I would find error under even the

more demanding standard; they, apparently, would find none

even under the more lenient. Compare Maj. Op. at 21.

To establish plain error, a defendant must show (besides,

of course, error): that the error was plain, which in its role as

one of the “plain error” requirements “simply means clear,”

United States v. Terrell, 696 F.3d 1257, 1260 (D.C. Cir. 2012)

(internal quotation marks omitted); that it “affect[ed]

substantial rights,” Mack, 841 F.3d at 522; and that it “seriously

affect[ed] the fairness, integrity, or public reputation of judicial

proceedings,” id.

An error is clear “if it contradicts circuit or Supreme Court

precedent,” In re Sealed Case, 573 F.3d 844, 851 (D.C. Cir.

2009), as of “the time of appellate review,” United States v.

Bostick, 791 F.3d 127, 149 (D.C. Cir. 2015) (citing Henderson

6

v. United States, 133 S. Ct. 1121, 1129 (2013)). And the

majority recognizes that it has been clear since shortly after

United States v. Booker, 543 U.S. 220 (2005), that a district

court “must consider” any “nonfrivolous argument for a

sentence below the relevant guideline range.” Bigley, 786 F.3d

at 14; see also Rita, 551 U.S. at 356-357; Locke, 664 F.3d at

357. Straddling both the “error” and the “clear” elements, the

panel finds no “obvious” error. Maj. Op. at 7, 10.

In fact Pyles’s two reasons for variance were more than

compelling enough to qualify for the modest protections

identified in Rita, Locke, and Bigley—a point I do not take my

colleagues to dispute. Each argument was appropriately rooted

in the sentencing factors of 18 U.S.C. § 3553(a), each was

relevant to Pyles’s circumstances, and neither was addressed by

the district court.

Counsel properly couched his client’s sexual abuse within

the first § 3553(a) factor, which directs attention to “the history

and characteristics of the defendant.” See Defendant’s Mem.

at 14-15; see also Sentencing Tr. at 20. The relevance of

childhood sexual abuse in child pornography sentencing is

obvious. Such an experience seems sure to produce at a

minimum deep moral confusion. Afraid, unable or unsure of

how to resist, the child is put in a hopeless bind. His sense of

self-worth and agency, his ability to hew to moral norms, are

all eroded. See Kimberly A. Tyler, Social and Emotional

Outcomes of Childhood Sexual Abuse: A Review of Recent

Research, 7 AGGRESSION & VIOLENT BEHAVIOR 567, 568-78

(2002) (summarizing research on behavioral sequelae in child

sex abuse victims, finding increased suicide, substance abuse,

gang involvement, PTSD, and other behavioral problems); see

also Abdulaziz Al Odhayani et al., Behavioural Consequences

of Child Abuse, 59 CANADIAN FAMILY PHYSICIAN 831, 831

(Aug. 2013) (similar); Am. College of Obstetricians &

7

Gynecologists, Adult Manifestations of Childhood Sexual

Abuse, Committee Op. No. 498, at 1-2 (Aug. 2011) (similar).

The Sentencing Commission reports that childhood

sufferings of sexual abuse are rare among child pornography

defendants. “The vast majority of non-production offenders,”

i.e., ones not producing child pornography, “reported [no] . . .

history of childhood sexual abuse.” Commission Report at 164.

Perhaps because the combination is relatively rare, § 2G2.2

takes no explicit account of this characteristic, thus making its

consideration as part of § 3553(a) all the more important. And

because the Supreme Court has eliminated any requirement that

mitigating circumstances be “extraordinary,” Gall v. United

States, 552 U.S. 38, 47 (2007), childhood abuse may justify a

below-range sentence even if not “exceptional,” United States

v. Simpson, 346 F. App’x 10, 15 (6th Cir. 2009). Although the

weight to be given to such personal history is up to the district

court (subject to reasonableness review), it plainly represents a

nonfrivolous mitigation argument calling for consideration.

Without some sign of consideration, there would be no basis

for thinking—other than blind faith—that the court really

weighed the issues at stake.

Also calling for the district court’s consideration was

Pyles’s other argument—that “as a result of recent changes in

the computer and Internet technologies that typical non-

production offenders use,” § 2G2.2 “no longer adequately

distinguishes among offenders based on their degrees of

culpability.” Defendant’s Mem. at 8 (quoting Commission

Report at ii). Pyles’s counsel pointed out that “many of the[]

enhancements” to Pyles’s sentencing range under § 2G2.2

“recur in each and every” case, thereby “fail[ing] to distinguish

as to more culpable, more dangerous offenders.” Sentencing

Tr. at 14; see also Defendant’s Mem. at 12-13 (indicating that

the enhancements lead to sentences “greater than necessary,”

contrary to § 3553(a) (quoting § 3553(a))). He argued in

8

particular, see Defendant’s Mem. at 8-9, that almost all child

pornography defendants receive the enhancements Pyles had

received for “use of a computer,” § 2G2.2(b)(6); for “material

involv[ing] a prepubescent minor,” § 2G2.2(b)(2); for material

“portray[ing] [] sadistic or masochistic conduct,”

§ 2G2.2(b)(4); and for volume of images, § 2G2.2(b)(7)—each

of Pyles’s four videos counted as 75 images, see § 2G2.2 cmt.

6(B)(ii). These enhancements collectively increased Pyles’s

range by 12 levels. See Defendant’s Mem. at 4. This panoply

of enhancements applies so frequently that it serves to conflate

offenders rather than differentiate among them. See, e.g.,

United States v. Dorvee, 616 F.3d 174, 184-87 (2d Cir. 2010).

Pyles’s critique of § 2G2.2 overwhelmingly overlaps with

the Sentencing Commission’s own misgivings. See

Defendant’s Mem. at 8 (citing Commission Report at iii, xi,

209, 323). In the Commission’s judgment, the enhancements

“relating to computer usage and the type and volume of images

. . . now apply to most offenders and, thus, fail to differentiate

among offenders in terms of their culpability.” Commission

Report at iii & n.14. The Commission has warned that these

enhancements are “outdated and disproportionate,” id. at xxi,

321, 331, and has recommended amending them, id. at xviii-

xxi. See Defendant’s Mem. at 8-11 (citing Commission Report

throughout). As we said of a similar request for departure from

the crack cocaine Guidelines, “[I]t remains of great importance

that, in its recommendations, the Commission candidly and

forthrightly exposed the weaknesses and failings of its

Guideline . . . .” United States v. Pickett, 475 F.3d 1347, 1355

(D.C. Cir. 2007). Indeed in Pickett we reversed the district

court for failing to consider how the Commission’s own

thinking supported a departure request. See id. at 1356.

The requirement of “consideration,” clearly applicable to

both Pyles’s points, is unlike other sentencing procedures, such

as calculating the range, in that it is a wholly internal process.

9

With no way of knowing a district court’s synaptic firings, the

law necessarily looks for external manifestations. “The

sentencing judge should set forth enough to satisfy the appellate

court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking

authority.” Rita, 551 U.S. at 356 (emphasis added). Ordinarily,

“[d]oing so will not necessarily require lengthy explanation,”

but when a litigant argues, as Pyles has, “that the Guidelines

reflect an unsound judgment, or, for example, that they do not

generally treat certain defendant characteristics in the proper

way,” the judge must “say [] more.” Id. at 356-57. Rita’s

phrasing makes clear that consideration of nonfrivolous claims

and reasoned decision making are independent though

interlocking requirements.

Even for a court confronting “straightforward,

conceptually simple arguments” as in Rita itself, id. at 356, the

Court gave no license to disregard defense contentions. Instead

it emphasized that the judge had “asked questions about each

factor” Rita had given to support a variance and “summarized”

those arguments on the record. Id. at 344-45. The Court used

these responses to infer that the judge had “listened to each

argument” and “considered the supporting evidence.” Id. at

358. Although the Court might have accepted just the

summarizing or just the questions as adequate, Rita made clear

that the record must show that the district court heard and

understood the nonfrivolous argument. Without that minimum,

there is nothing from which to infer genuine consideration.

The Court reiterated this stance in dictum in Gall, when it

rejected the government’s argument that a lenient drug

sentence was procedurally infirm: “It is true that the District

Judge did not make specific references to the (unquestionably

significant) health risks posed by ecstasy, but the prosecutor did

not raise [those risks] at the sentencing hearing. Had the

prosecutor raised the issue, specific discussion of the point

10

might have been in order.” 552 U.S. at 53-54. Compare Maj.

Op. at 16 (discussing unrelated point in Gall, 552 U.S. at 54,

that a reviewing court can discern trial court consideration of a

§ 3553(a) factor—avoidance of unwarranted disparities—from

a combination of the factor’s automatic inclusion in the

calculation of the guideline and the trial court’s extended

inquiry regarding the sentences given to the co-defendants in

the case).

Starting with Locke, our cases have spoken of Rita’s

inference in terms of a presumption. 664 F.3d at 358. But the

substance of our requirement has been the same (until today).

Just as Rita relied on the district court’s questioning and

summarizing the defendant’s claims, we have asked if the

district court has at least acknowledged the defendant’s

nonfrivolous arguments on the record. See Bigley, 786 F.3d at

173 (sentencing law calls for district court to “respond[] to a

defendant’s arguments”); see also Mack, 841 F.3d at 523. In

Locke “the record ma[de] plain” this acknowledgment: of the

two “arguments Locke claims it ignored,” the district court

“engaged in an extended colloquy” on one and “explicitly

acknowledged” the other. 664 F.3d at 358. With that bar met,

then “so long as the judge provides a ‘reasoned basis for’” the

sentence, “we generally presume that he adequately considered

the arguments.” Id. (emphasis added) (quoting Rita, 551 U.S.

at 356). Thus Locke’s presumption of adequate consideration

flowed from the quite specific acknowledgement of

defendant’s claim; we didn’t create something from nothing,

reasoned consideration from silence. What if the judge offers

a “reasoned basis” for the sentence but fails to acknowledge the

defendant’s argument? We reverse, as in Bigley. The principle

seems straightforward: if “the sentencing judge fails to respond

to a nonfrivolous argument, the presumption of adequate

consideration is rebutted.” Mack, 841 F.3d at 523 (emphasis

added).

11

My colleagues recoil from the words “respond” and

“acknowledge” in Mack, Bigley, and Locke. Possibly they fear

that “respond” could be taken to mean a compelling refutation

of the defendant’s claims (a reading unsupported by our cases).

But I cannot fathom the majority’s objection to “acknowledge,”

a term that, if anything, understates the law’s demand. In

McKeever we recognized that passing or obscure references

cannot sustain an inference of consideration. There, a

defendant had “clearly raised sentencing entrapment” as a

reason for leniency. 824 F.3d at 1125. And, as we said, the

judge’s statements showed that she “had an inkling of the

issue” and “was aware that police [not defendant] had brought

the firearms.” Id. at 1117, 1126. But, because the court’s

comments did not “expressly address[] the issue,” we could not

discern whether the court “meant to reject” the argument or had

simply “failed to address” it. Id. at 1125-26. Holding that the

district court fell short of the requirements for Locke’s

presumption, we vacated and remanded the sentence. Id.

Thus we require actual acknowledgment: Delphic

comments won’t suffice. But contrary to my colleagues’

protestations, this bar can be met without the court’s explicitly

weighing the nonfrivolous argument. We recently took a

sentencing court’s barebones acknowledgment, “[Y]ou all have

strived to do the right thing during your period of

incarceration,” and inferred from it a consideration of the

strengths and weaknesses of the defendant’s rehabilitation

claim. Hunter v. United States, 809 F.3d 677, 685 (D.C. Cir.

2016). And in United States v. Fry, where a defendant raised

an argument similar to Pyles’s about the unreasonable

enhancements in the child pornography guidelines, the district

court’s response was skeletal but direct. 851 F.3d 1329, 1332-

33 (D.C. Cir. 2017). It said that it would have found the

conduct just as grave “even absent those enhancements,” and

we took that as adequate to “confirm[]” that the court had

considered the argument. Id. The district courts in Hunter and

12

Fry did not say much about the nonfrivolous arguments, but we

inferred that there was substance behind their words.

With those cases on one side and McKeever on the other,

it is obvious where Pyles’s sentencing falls. The district court

in McKeever manifested an “inkling” of the defendant’s

argument, yet we remanded: the court here showed none. See

824 F.3d at 1117, 1126. Did the district court impose a

Guidelines sentence because it disagreed with Pyles on the law,

on the facts, on the weighing of the § 3553(a) factors? These

questions cannot be answered from the record; as McKeever

said, that deficiency has been a “clear” error in our circuit at

least since Locke. Id. at 1126.

Even setting aside those clear precedents, the district

court’s lack of acknowledgment is “plainly out of sync” with

the basic requirements of sentencing, as evidenced by the

holdings of our fellow circuits. See United States v. Burroughs,

613 F.3d 233, 245 (D.C. Cir. 2010). These courts, from which

the panel now splits, are all but unanimous in requiring direct

evidence of consideration. See, e.g., Flores-Mejia, 759 F.3d at

259 (sentencing court abused its discretion by replying to

variance argument with only, “OK, thanks. Anything else?”);

United States v. Temprano, 581 F. App’x 803, 806-07 (11th

Cir. 2014) (vacating sentence where judge “fail[ed] to give any

explanation for his chosen sentences” and “gave no reason for

rejecting Temperano’s request for a below-Guidelines sentence

and the government’s 24-month sentence recommendation”);

United States v. Emmett, 749 F.3d 817, 822 (9th Cir. 2014)

(noting that “district courts must provide an ‘explanation,’ not

merely consideration’” and vacating denial of request to

terminate supervised release (quoting United States v. Trujillo,

713 F.3d 1003, 1010 (9th Cir. 2013)); United States v. Corsey,

723 F.3d 366, 377 (2d Cir. 2013) (relying on Rita to vacate

sentence where, among other faults, the district “court never

resolved appellants’ significant arguments” for a lower

13

sentence even though it offered reasons for its decision); United

States v. Wallace, 597 F.3d 794, 804-05 (6th Cir. 2010) (citing

Rita and holding that “failure to even acknowledge Defendant’s

argument” is sentencing plain error); Lynn, 592 F.3d at 585

(“Simply put, because there is no indication that the district

court considered the defendant’s nonfrivolous arguments prior

to sentencing him, we must find error.”); United States v.

Mondragon-Santiago, 564 F.3d 357, 363-64 & n.5 (5th Cir.

2009) (district court committed plain error when it “did not

squarely address Mondragon-Santiago’s sentencing

arguments” and “the court’s statement of reasons did not

further illuminate its reasoning”); United States v. Miranda,

505 F.3d 785, 796 (7th Cir. 2007) (vacating sentence because

district court’s remarks about defendant’s sanity did not show

adequate consideration of defendant’s “specific arguments

regarding the effect of his mental illness on sentencing”).

My colleagues see no problem. They dilute Rita’s

requirement, saying that “[i]f a trial judge states a reasonable

decision in support of sentencing and that decision obviously

forecloses an objection raised by the defendant,” then we must

be “very cautious” before finding an absence of adequate

consideration. Maj. Op. at 16. Disregarding Rita’s careful note

that the judge had “asked questions about” and “summarized”

Rita’s arguments on the record, 551 U.S. at 344-45, the

majority invokes Rita for a much slacker idea: if the judge

“finds that the circumstances do not warrant a below-

Guidelines sentence,” we may infer consideration of each

argument. Maj. Op. at 12. And this applies even though the

reasoning offered lies within a framework hermetically sealed

from defendant’s contentions. Silent disregard now stands in

for the reasoned consideration required by Rita. Compare

McKeever, 824 F.3d at 1117, 1126 (remanding despite

evidence that district court had an “inkling” of counsel’s

argument).

14

As we have never before accepted such a flaccid version

of Rita, my colleagues are driven to rewrite our precedents.

They say that the district court in Locke “did not address every

mitigating argument offered by the defendant.” Maj. Op. at 11.

But there we found that the court had specifically addressed

“both arguments Locke claimed it ignored.” 664 F.3d at 358.

The majority also leans on language in United States v. Borda,

but in that case we determined that the unaddressed mitigation

claim was “irrelevant” (i.e., frivolous) and did not demand any

consideration. 848 F.3d 1044, 1072 (D.C. Cir. 2017). As for

the critical passages in Mack, McKeever, Hunter, and Fry—not

a word.

Finding no direct authority for their view, my colleagues

rely on an analogy to our decisions that a judge need not

acknowledge every § 3553(a) factor, reasoning that “[t]he same

is true for mitigation arguments . . . .” Maj. Op. at 15; see

Locke, 664 F.3d at 358. True enough; just as we don’t ask

courts to formulaically recite inapposite § 3553(a) factors, we

require consideration only of nonfrivolous arguments. My

colleagues also omit our long-standing recognition, paralleling

the rule on a defendant’s assertion of nonfrivolous objections,

that “[w]hen a defendant has [] asserted the import of a

particular § 3553(a) factor,” the sentencing court is required to

address that factor. United States v. Simpson, 430 F.3d 1177,

1187 (D.C. Cir. 2005); accord United States v. Brinson-Scott,

714 F.3d 616, 627 (D.C. Cir. 2013) (“A sentencing court

satisfies the requirements of the Sentencing Reform Act so long

as it considers the section 3553(a) factors implicated by the

defendant’s arguments.” (emphasis added)). So too here.

Though formulating what appears to be a zero-scrutiny

principle, my colleagues also adopt a fallback position, saying

that in fact the district court “responded” to Pyles. Maj. Op. at

19. First they note that Pyles made “six mitigation arguments”

and that his appeal involves just two, id. at 4, suggesting that

15

the court adequately considered the others. But at sentencing

Pyles voiced only two reasons for a downward variance—the

two at issue here. His other arguments were either specifically

couched not as a variance request, Sentencing Tr. at 12, or as

responses to issues raised by the district court, e.g., id. at 21-

22. In terms of nonfrivolous arguments for a downward

variance, the district court was batting 0 not .667.

The majority also says that the district court “expressed

skepticism towards,” labeled as “weak,” and “implicitly

rejected” Pyles’s argument about § 2G2.2. Maj. Op. at 5-6, 16.

As for the purported “skepticism,” my colleagues rely on

district court comments discussing unrelated contentions made

by government counsel before Pyles’s attorney even had a

chance to speak. Id. at 5-6 (citing Sentencing Tr. at 9 (rejecting

government’s argument that Pyles’s cooperation and small

amount of child pornography merited a lower sentence)); see

id. at 18-19. In some circumstances a court, already familiar

with the sentencing briefs, might preemptively respond to a

defendant’s oral argument. But the comments the majority

cites, and the government arguments they rejected, had nothing

to do with the points Pyles’s counsel would raise.

Read out of context, there is one point of seeming overlap,

the prosecutor’s comment that sometimes the Guidelines might

be too high, sometimes too low. Sentencing Tr. at 9. But the

prosecutor’s point, evident in his immediately following

statements and echoed in his brief, was that Pyles’s sentencing

range (save for one enhancement) was appropriate, id., and that

the judge shouldn’t attempt to disrupt § 2G2.2’s balancing act

by “cherry-picking” among enhancements, Gov’t Mem. at 10-

11. Where the prosecutor urged disregard of an enhancement

(the one for distribution), it was on grounds of the parties’

having mistakenly omitted it in reaching the plea agreement,

not on any policy dispute with the Guidelines. This was also

the only enhancement that Pyles did not attack on policy

16

grounds. The government’s arguments complemented but in

no way coincided with Pyles’s.

As for purported responses to Pyles’s arguments, the

majority describe the district court as having said that

“criticisms of the child pornography guidelines were weak in

this case.” Maj. Op. at 6. Unfortunately their paraphrase bears

little relation to the colloquy it describes. Pyles’s counsel stated

early on that the travel offense is considered to be “more

horrific” than possession even though it has a lower aggregate

offense level. Sentencing Tr. at 15. As counsel transitioned to

his main point, the district court interrupted to say that people

might “disagree” about the relative seriousness of each crime

but that the court personally felt that the travel conduct is

“impossible” to defend. Id. at 15-16. The court then doubled

back, “But you could make an argument—certainly I’m not

telling you you should. I mean, you can certainly make an

argument that distri[buting] pornographic images of

prepubescent children of a sadomasochistic nature over the

internet is even more serious conduct than travelling interstate,

per se.” Id. at 16 (emphasis added). Following that the court

returned to its agreement with Pyles’s counsel that the travel

offense was “so awful.” Id. These comments—part

concurrence, part off-the-cuff advice—offer no assessment of

Pyles’s mitigation argument. To my colleagues though, this

passage is laden with subtext. Later they claim that what the

judge really meant here was that the “Guidelines enhancement

for sadomasochistic images was appropriate.” Maj. Op. at 19.

Again, the transcript speaks for itself.

My colleagues’ evidence of implicit consideration is no

more apt. In a status conference four months before sentencing,

the district court mentioned that it had spent “a ‘considerable

amount of time’ reviewing” the case. Maj. Op. at 16 (quoting

Status Conference Tr. at 3 (May 28, 2014)). I do not take that

generality to be a serious answer to the question whether the

17

court considered defendant’s arguments. At the same status

conference, the court ordered a psychological examination to

determine “[w]hether or not [Pyles] is a pedophile”—a

diagnosis certainly relevant as yielding useful background

information, but hardly a substitute for judicial consideration of

Pyles’s mitigation arguments. Id. And my colleagues refer to

the judge’s comment about getting his “glasses repaired so that

he could read everything.” Maj. Op. at 17. Pity the defendant

in the next case whose judge mentions having just gotten a new

hearing aid; shall we then find that the district court assiduously

“listened to each argument”? Cf. Rita, 551 U.S. at 358. None

of these examples evince tacit rejection of Pyles’s § 2G2.2

argument, as opposed to simple disregard, let alone the basic

acts of acknowledgment that were critical in Rita, Locke, Fry,

and Hunter. Rather the majority’s point seems to be that any

judge who read the briefs and sat through oral argument should

have picked up on Pyles’s arguments. Maj. Op. at 17-19. I

agree: the district court should have, but the record offers no

evidence that he did.

On the sexual abuse claim, the majority even concedes that

the court made no acknowledgment. Id. at 20. But they insist

that the judge must have read and considered it because the

abuse featured prominently in multiple documents that crossed

the court’s desk: the pre-sentence report; Pyles’s first

sentencing memorandum; and the psychological evaluation.

The majority puts particular emphasis on this last document,

reasoning that because the judge ordered the evaluation, he

must have considered everything in the ensuing report. But the

district court ordered the evaluation not to investigate Pyles’s

mitigation argument, but solely to learn “[w]hether or not

[Pyles] is a pedophile.” Status Conference Tr. at 3. And at

sentencing, its comments about the report were focused on

potential recidivism, a matter linked to possible pedophilia.

See, e.g., Sentencing Tr. at 9-10. The record thus confirms that

the court’s interest in Pyles’s mental health was specific, not

18

holistic; there is little in human experience meriting the

majority’s assumption to the contrary. When you go to the

emergency room for a broken ankle, you might well tune out

the intake nurse’s advice about flu shots.

Had the district court discredited Pyles’s abuse or rejected

the § 2G2.2 arguments, the majority and I might well have

deferred to those decisions. But rather than tackling Pyles’s

arguments, the court seemed to assume that a downward

variance would be inappropriate. It responded to the

government’s request for leniency by saying, “Essentially,

you’re asking for a variance of this Court downward. . . . I’m

hard-pressed to see how that could possibly be the case here,”

Sentencing Tr. at 5, followed by, “I don’t know how a below-

Guideline Range [] sentence could ever deter anyone from

conduct of this nature,” id. at 6, and, “There’s no way this Court

could ever consider a variance downward in this case. . . . [I]t’s

not conceivable,” id. at 9. Having dismissed the government’s

arguments for a shorter sentence, the court then asked Pyles for

his “best argument for downward variance,” but it immediately

cautioned that variance was “an extraordinary request.” Id. at

12. The district court’s labeling a downward variance “an

extraordinary request” and dismissing it as “not conceivable,”

id. at 9, 12, come close to conditioning a variance on

“compelling reasons,” a condition that our court has found to

be an improper “presumption that the Guidelines range is

reasonable,” Terrell, 696 F.3d at 1262. Indeed, after Pyles’s

arguments for a variance, the district court explicitly expressed

its assumption that its choices were only between a Guidelines

sentence and an upward variance. “[T]his is not a case where

the low end of the Guideline Range . . . is appropriate. . . . The

challenge this Court has had to wrestle with is whether to vary

upward.” Sentencing Tr. at 33.

From this record, the majority assembles various

conclusory and often unsubstantiated statements and calls it

19

reasoned decision making. See Maj. Op. at 5. But even apart

from the failure to respond to defense counsel’s contentions,

the district court’s discussion at sentencing qualifies as

reasonable (if at all) only by the skin of its teeth. The court

placed great weight on the need to protect the public, the need

for deterrence, and the seriousness of the offense. Sentencing

Tr. at 17, 33. It focused particularly on the images, noting that

they “aren’t just obscene, but they involve prepubescent

children and they involve sadomasochistic images on top of

that,” id. at 32. And it stressed the interstate travel, which it

saw as “demonstrate[ing] overwhelmingly a commitment to

and desire to engage in sexual conduct with a minor,” even as

it acknowledged that many trips of a length classifiable as

interstate in the Washington metropolitan area would elsewhere

be purely intrastate. Id. at 15-16. Despite repeatedly invoking

the seriousness of the pornography offense, the court never

even acknowledged that much of what the court found so

serious, such as the type of images, is almost universal in child

pornography cases. Commission Report at iii & n.14. Had the

court openly grappled with this issue—explicitly put before it

by defense counsel—we would be in a much better position to

understand why it chose the sentence it did. See Bigley, 786

F.3d at 16.

The court also emphasized the psychological report, which

it read as indicating that Pyles “does not think he needs” prison

sex offender treatment, that Pyles minimized his offenses, and

that Pyles “blam[ed] [his inclinations] on drug usage,” an

excuse that the court rejected. Sentencing Tr. at 9-10; see id. at

11. On all these issues the court to a considerable degree

distorted both the report and the defendant’s position. In

criticizing defendant for purportedly blaming his drug

addiction, the court disregarded Pyles’s argument that both his

drug use and his criminal behavior followed directly from the

larger issue—his childhood sexual abuse—which the court

persisted in ignoring. See Defendant’s Mem. at 13-14.

20

(Because the sex abuse led to Pyles’s criminal behavior as well

as drug use, the majority appears ready to allow any district

court comment about the drug use to double as a comment

about the sex abuse. Maj. Op. at 20. Applying their reading

consistently would lead to very curious results, such as the

district court implying that child sexual abuse cannot be “a

factor in a person’s desire to engage in pedophilia.” See

Sentencing Tr. at 10 (discussing “drug usage”).)

The court’s repeated emphasis on Pyles’s unwillingness to

undergo sex offender treatment was also misplaced. After the

district court insisted that the report showed no “hope” of Pyles

rehabilitating, even the prosecutor politely chided, “I’m not

sure that the report makes it quite as clear that [Pyles] would

not be amenable to treatment.” Id. at 10. The psychologist in

fact emphasized that Pyles had participated willingly in the

evaluation and suggested that Pyles’s reticence about sex

offender treatment could be addressed with therapy. The report

concluded that Pyles would have a “low” risk of recidivism if

he undertook both sex offender and substance abuse treatment

but that successfully completing only one, or neither, would

create, respectively, a moderate, or high, risk. Gov’t

Supplemental Sentencing Mem. at 3. Although Pyles had

expressed reticence only about sex offender treatment, the court

seems to have assumed that Pyles would refuse both that and

drug treatment, thus leading to the “high” risk outcome, or that

failing sex offender treatment alone would create such a risk.

See Sentencing Tr. at 11; see also id. at 16 (“He could be out

there, once out of jail, posing the same risk.”).

In his allocution Pyles himself explained that his initial

misgivings about sex offender treatment stemmed from the

prison program’s penile plethysmograph procedures, but said

that after talking with others, he had decided to “participate in

the sex offender treatment regardless.” Id. at 27. At the time

of sentencing, therefore, Pyles had apparently withdrawn his

21

misgivings on the sex therapy. Quite a few courts of appeals

share those misgivings about plethysmography and have

vacated post-release conditions making it mandatory. See

United States v. McLaurin, 731 F.3d 258, 263-64 (2d Cir.

2013); see also United States v. Medina, 779 F.3d 55, 71 (1st

Cir. 2015); United States v. Weber, 451 F.3d 552, 554 (9th Cir.

2006). So a degree of hesitance about such a procedure can

hardly be held against a defendant, especially when in the end

he accepts the psychologist’s recommendation to undergo

therapy. See Sentencing Tr. at 27. As further evidence of his

interest in therapy, Pyles asked the court (after sentence was

announced) to recommend him for a Bureau of Prisons drug

treatment program. Id. at 39.

Beyond the court’s unmoored discussion of the

psychologist’s report, its oft-repeated concerns about

recidivism appear to have been based more on intuition than

information. See Dissent, supra, at 20. The Commission has

compiled considerable data on the subject. A study of 610

defendants convicted of “non-production” child pornography

offenses, tracked for an average of eight and a half years after

release, yielded a 7.4% rate for “sexual recidivism”—

encompassing 3.6% for “contact” offenses, 2.3% for new child

pornography offenses, and 1.5% for “non-contact sex offenses

involving obscenity or commercial sex.” Commission Report

at 294-301. “General” recidivism of sex offenders,

encompassing all crimes, is obviously higher but still in line

with that of other defendants. Id. at 308-10; see also Matthew

R. Durose et al., Bureau of Justice Statistics, Recidivism of

Prisoners Released in 30 States in 2005: Patterns from 2005 to

2010, at 8 (2014) (sexual assault offenders’ recidivism lower

than that of assault or robbery offenders). As one district court

observed as part of an exhaustive analysis of the subject,

“Recent research suggests that the recidivism rate of child

pornography offenders may be low, with most child

pornography viewers unlikely to engage in future sexual

22

offenses.” United States v. R.V., 157 F. Supp. 3d 207, 240

(E.D.N.Y. 2016).

These studies are not the end of the matter. Actual

recidivism may be higher than known recidivism, given the

underreporting of sex crimes. Commission Report at 295 &

n.12. And general recidivism is somewhat higher for

defendants whose criminal history category is (like Pyles’s)

above I. Id. at 308-10. The court’s individualized assessment

of the defendant is certainly relevant too, but here the person in

the courtroom with possibly the best opportunity to aid in such

assessment was the prosecutor, who had “handled these cases

[] exclusively for a number of years” and argued consistently

for a sentence below the corrected Guidelines range.

Sentencing Tr. at 6.

Finally, as the majority repeatedly mentions, the court

intended to cancel out the “huge break” that Pyles received

through the government’s agreeing to a plea without a

distribution charge, thereby sparing Pyles, as the judge saw it,

the five-year mandatory minimum attached to distribution. Id.

at 7; Maj. Op. at 5, 19, 21. In fact the lower end of the range

that Pyles agreed to (78-97 months) was a year and a half more

than the mandatory minimum, and the sentence Pyles

eventually sought (87 months) was well beyond that minimum.

Pyles was spared the mandatory minimum only in a nominal

sense.

If the district court’s reasoning seems incomplete, there is

good reason for that: the court never responded to two

arguments that intersected with most of the issues in this case.

The court clearly erred by not addressing Pyles arguments and

leaving us with the type of incomplete record that Rita and its

sequels in our and other circuits sought to prevent.

23

More generally, the majority’s new presumption cannot be

reconciled with the goals of federal sentencing reform. As is

well known, the Sentencing Reform Act sought to limit

sentencing discrepancies arising from the predilections of

individual judges. To the extent that the Act’s solution was

mandatory Guidelines, it collapsed from constitutional

infirmities, which the Supreme Court solved by removing the

Guidelines’ mandatory character. Booker, 543 U.S. at 245. By

upending the relationship between sentences and the

Guidelines, Booker necessarily reset the dynamic between

district and appellate courts. See Gall, 552 U.S. at 46 (“Our

explanation of ‘reasonableness’ review in the Booker opinion

made it pellucidly clear that the familiar abuse-of-discretion

standard of review now applies to appellate review of

sentencing decisions.”). The Court read the statute as

establishing review not only for substantive reasonableness but

also for conformity to the procedural requirements of law—

most obviously such matters as proper calculation of the

Guidelines sentence but also “fail[ure] to consider the

§ 3553(a) factors” and “fail[ure] to adequately explain the

chosen sentence.” Id. at 51. Flowing from that latter

requirement is Rita’s more specific rule that the court “satisfy

the appellate court that he has considered the parties’

arguments.” See Rita, 551 U.S. at 356. As the Court has

explained, Rita’s procedural check is needed “to promote the

perception of fair sentencing.” Gall, 552 U.S. at 50. Indeed,

one might add, the reality of fair sentencing.

“Although the federal system’s procedural rules establish

[relatively] gentle[] checks on the sentencing court’s discretion

. . . , they nevertheless impose a series of requirements on

sentencing courts that cabin the exercise of that discretion.”

Peugh v. United States, 133 S. Ct. 2072, 2084 (2013). The

requirement to consider the § 3553(a) factors is procedural but

it guides the substance of the judge’s reasoning; likewise the

requirement to consider nonfrivolous arguments helps ensure

24

that sentences are driven by context, not caprice. See generally

Gall, 552 U.S. at 51 (procedural review is to precede

reasonableness review).

In contrast to this rigorous procedural review, the appellate

courts’ post-Booker role in monitoring for substantive

reasonableness has been inherently weak. See generally id. at

51-52. With a swarm of factors likely to be relevant, many of

them involving subtle questions of degree, reversal for

unreasonableness would be likely only to replace a single

judge’s weighing of imponderables with a three-judge panel’s

weighing. Appellate intervention in such circumstances is

unlikely to provide much guidance for lower courts and even

more unlikely to develop useful rules of law. See Cooter &

Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). We

recognized the comparative advantages of the two courts early

in the post-Booker era, see United States v. Gardellini, 545 F.3d

1089, 1093 n.3 (D.C. Cir. 2008), and in the almost ten years

since then we appear to have never found a sentence

substantially unreasonable (apart from cases such as Pickett

where the unreasonableness stemmed from an error of law).

With substantive discretion almost entirely in the hands of

district courts, any useful role for the courts of appeals in

“promot[ing] the perception of fair sentencing” lies in their

enforcement of the statute’s procedural requirements. See

Gall, 552 U.S. at 50. The panel’s readiness to gloss over a

district court’s non-recognition of a serious argument for

(relative) leniency goes far to abdicate that role and thus restore

the status quo ante the Sentencing Reform Act: virtually

untrammeled district court authority over sentences. Perhaps

that outcome would be preferable on broad jurisprudential

grounds, but it is not what Congress and the Supreme Court

have wrought. The majority discards the basic procedural

requirements and thus sacrifices the interests of consistency,

coherency, and clarity of thought.

25

The majority’s new presumption is particularly ill-advised

when dealing with a sentence derived from § 2G2.2, which

exists in spite of the Commission’s judgment as to the sentence

called for by the § 3553(a) factors. Though § 2G2.2 originated

with the Commission, its content has been repeatedly diverted

from the Commission’s reasoning by congressional mandates.

See generally U.S. Sentencing Commission, The History of the

Child Pornography Guidelines (Oct. 2009). And see United

States v. Grober, 624 F.3d 592, 608 (3d Cir. 2010) (agreeing

with district court comment that “to say that the final product

is the result of Commission data, study, and expertise simply

ignores the facts”). The court in Dorvee found that in view of

these exercises of force majeure the Guideline was one “that,

unless applied with great care, can lead to unreasonable

sentences that are inconsistent with what § 3553 requires.” 616

F.3d at 184. The Second Circuit has recently followed through

on its warning in Dorvee, reversing a child pornography

sentence for relying too heavily on § 2G2.2 and its “all-but-

inherent” enhancements. United States v. Jenkins, 854 F.3d

181, 188-91 (2d Cir. 2017). This court need not go so far here,

but Dorvee and Jenkins mark § 2G2.2 cases as among the least

suitable for a new policy of indifference to the modest

requirements of procedural regularity. Compare Rita, 551 U.S.

at 350 (presumption of reasonableness appropriate when

judge’s finding and “Commission’s judgment” overlap).

* * *

The other elements of plain error are easily met here. The

third element, that it “affected substantial rights,” requires “a

reasonable likelihood that the error affected the outcome.”

Terrell, 696 F.3d at 1263 (internal quotation marks omitted);

see Burroughs, 613 F.3d at 245. The defendant’s burden of

“showing prejudice” is “somewhat lighter in the sentencing

context than for errors committed at trial.” Burroughs, 613

F.3d at 245 (internal quotation marks and alterations omitted).

26

The defendant “need not even demonstrate that it is ‘more

likely than not’ that his sentence will change.” United States v.

Williams, 358 F.3d 956, 966 (D.C. Cir. 2004). Because Pyles’s

variance requests double as requests for a shorter within-range

sentence, “[t]he question isn’t whether defendant’s prison term

would have been drastically shorter—just whether it was

reasonably likely that the prison term would not have been as

long.” In re Sealed Case, 573 F.3d at 852. Given the court’s

omission here of any reference to two major contentions going

to the just application of its discretion, and its troubling

insistence that a downward variance was “not conceivable,”

Sentencing Tr. at 9, there is a “reasonable probability that the

court might not have imposed” the sentence “if it had fulfilled

its obligation” to consider Pyles’s nonfrivolous arguments for

a variance, Burroughs, 613 F.3d at 245 (quoting United States

v. Perazza-Mercado, 533 F.3d 65, 78 (1st Cir. 2009)).

The final consideration for plain error is whether the

procedural flaw “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v.

Hunt, 843 F.3d 1022, 1029 (D.C. Cir. 2016) (alteration

omitted). In the sentencing context, the first three plain error

elements—an error that was clear and reasonably likely to have

affected a prison term—all but establish the fourth. See Terrell,

696 F.3d at 1263. An inadequate record seriously affects the

judicial process, because “a reviewing court and the public

cannot adequately evaluate the judge’s sentence selection.”

Bigley, 786 F.3d at 16; accord United States v. Akhigbe, 642

F.3d 1078, 1087 (D.C. Cir. 2011) (explaining that a “failure to

explain adequately the sentence” meets the “seriously

affecting” element when it “precludes appellate review”

(brackets omitted)). That is certainly the case here. Having

found that all four elements of plain error are present, I would

vacate and remand for the district court to consider Pyles’s

arguments.