United States v. Dawayne Brown

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 23, 2018 Decided June 15, 2018

No. 15-3056

UNITED STATES OF AMERICA,

APPELLEE

v.

DAWAYNE BROWN, ALSO KNOWN AS GOON,

APPELLANT

Consolidated with 15-3065, 15-3066, 15-3067

Appeals from the United States District Court

for the District of Columbia

(No. 1:13-cr-00203-5)

(No. 1:13-cr-00203-3)

(No. 1:13-cr-00203-6)

(No. 1:13-cr-00203-2)

Christine Pembroke, appointed by the court, argued the

cause and filed the briefs for appellant Dawayne Brown.

Mary E. Davis, appointed by the court, argued the cause

for appellant Marquette Boston. With her on the briefs was

Pleasant S. Brodnax III, appointed by the court.

2

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

cause and filed the briefs for appellant Ira Adona.

Jonathan Zucker, appointed by the court, argued the cause

and filed the briefs for appellant Keith Matthews.

James A. Ewing, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Elizabeth Trosman,

Elizabeth H. Danello, and George P. Eliopoulos, Assistant

U.S. Attorneys.

Before: GARLAND, Chief Judge, and KAVANAUGH and

MILLETT, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge MILLETT.

Opinion dissenting in part filed by Circuit Judge

KAVANAUGH.

PER CURIAM: A jury convicted Dawayne Brown,

Marquette Boston, and Keith Matthews of crimes associated

with unlawful distribution of PCP. A fourth defendant, Ira

Adona, pled guilty before trial. The district court sentenced

Brown to 14 years in prison; Boston to eight years; Matthews

to nine years; and Adona to nine years. Adona’s sentence was

to be served consecutively to a prison sentence of two years

and four months imposed by the D.C. Superior Court for

Adona’s attempted assault with a dangerous weapon.

Defendants challenge their convictions and sentences.

Brown argues that: (i) the district court’s jury instructions were

erroneous in certain respects; and (ii) the district court based

Brown’s sentence on an erroneous factual finding. Boston

3

contends that the evidence was insufficient to support his

conviction for possession with intent to distribute PCP.

Adona argues that: (i) the district court double counted a D.C.

Superior Court conviction in determining his sentence; and (ii)

his federal and D.C. sentences should run concurrently, not

consecutively. Matthews argues that the district court erred in

sentencing because: (i) the court enhanced Matthews’ sentence

based on attempted assault with a dangerous weapon even

though, according to Matthews, attempted assault with a

dangerous weapon is not a crime of violence; and (ii) the

district court failed to adequately explain Matthews’ above-

Guidelines sentence.

We affirm the judgments of the district court with respect

to Brown and Boston. We vacate the sentences of Adona and

Matthews, and we remand the case to the district court for

resentencing of those two defendants.

I

Louis Clifton lived in the Woodberry Village apartment

complex in Washington, D.C. On January 12, 2013, Clifton

walked into the Metropolitan Police Department’s 7th District

station and told the officers an extraordinary story: Armed men

had taken over his apartment and were using the apartment to

manufacture and sell PCP – all while Clifton continued to live

there.

According to Clifton, at the end of December 2012,

Dawayne Brown and Keith Matthews attacked Clifton in the

foyer of his building and demanded access to his apartment.

Clifton refused. He managed to break free and fled to the

safety of his apartment. Clifton thought that was the end of it.

He was wrong.

4

One week later, Dawayne Brown again approached

Clifton – this time, with a gun. Brown forced Clifton into a

local Dollar Store at gunpoint and had Clifton make a copy of

Clifton’s house key. Clifton complied, and Brown

immediately took the key. From then on, Brown and

Matthews used Clifton’s apartment as they pleased. They

came and went when they wanted, without permission. And

they used the apartment to prepare “dippers” – cigarettes

dipped in PCP – and to store the money earned from selling

those dippers.

Clifton endured Brown and Matthews in his apartment for

several weeks before going to the police. He claimed to have

sought help discreetly at first, including from family members.

But that proved ineffective. Finally, he turned to the police for

help evicting his unwelcome, PCP-dealing home invaders.

The police traveled to Woodberry Village and entered

Clifton’s apartment, using the key that Clifton had provided

them. A surprised Brown was inside the apartment. Police

placed Brown on a sofa and handcuffed him. When they lifted

him from the sofa, they found a loaded handgun. The police

continued their search of Clifton’s apartment and discovered

an Uzi nine-millimeter semi-automatic rifle and a .38-caliber

revolver under the love seat. They also discovered evidence

of PCP, including glass vials with various amounts of PCP. In

total, 44.4 grams of PCP were recovered.

The police searched Brown’s cell phone. Text messages

on Brown’s phone led police to pursue Keith Matthews.

On March 7, 2013, police arrested Matthews inside

another Woodberry Village apartment. A search of

Matthews’ phone led police to discover that the takeover of

Clifton’s apartment was not an isolated event. Brown,

5

Matthews, and some friends had formed a drug-dealing

operation that they called “Little Mexico.” Little Mexico’s

method of operation involved using Woodberry Village

apartments to stash guns and sell PCP.

Matthews’ cell phone led police to Tiffany Williams’

apartment. When police executed a search warrant at

Williams’ home, they found Williams, Ira Adona, Breal Hicks,

and Williams’ six-year-old daughter. Police arrested the three

adults and searched the apartment. The search yielded

evidence similar to that found in Clifton’s apartment: partially

filled PCP vials, three handguns, and Everclear grain alcohol,

a known cutting agent for PCP.

Tiffany Williams cooperated with the police and led them

to the apartment of Conovia Eddie, another member of Little

Mexico. After obtaining a search warrant, the police raided

Eddie’s apartment. They used a battering ram to enter after

their demands to open the door had been ignored. Inside, they

found Marquette Boston. Boston was standing near the

bathroom, and the odor of PCP was coming from a running

toilet. Police arrested Boston. Police found vials partially

filled with PCP or containing PCP residue, empty vials, and

rubber gloves, in addition to a bulletproof vest and a loaded

.22-caliber pistol with an effaced serial number.

On September 10, 2013, the government obtained a 39-

count grand jury indictment against Brown, Boston, Matthews,

Adona, Hicks, and Eddie for conspiracy to distribute and to

possess with the intent to distribute PCP and related offenses.

On November 5, 2014, Adona pled guilty to conspiracy to

distribute and possess PCP. Under the plea agreement, Adona

agreed that he had conspired with others to distribute PCP in

Woodberry Village. He also admitted that he had shot a man

6

named Karl Carrington in the back on April 30, 2012, during a

marijuana transaction. The two crimes were to be sentenced

separately. In the D.C. Superior Court, Adona would be

sentenced for the shooting offense. In the U.S. District Court,

Adona would be sentenced for the drug conspiracy. The D.C.

Superior Court sentenced Adona to two years and four months

in prison. The district court sentenced Adona to nine years in

prison, to be served consecutively to the sentence of

imprisonment imposed by the D.C. Superior Court.

On March 24, 2015, the jury found Brown, Boston, and

Matthews guilty. 1 Brown was found guilty of second-degree

burglary while armed; possession with intent to distribute PCP;

and possession of an unregistered firearm. Boston was found

guilty of possession with intent to distribute PCP. Matthews

was found guilty of unlawful possession of a firearm and

ammunition.

The district court sentenced Brown to 14 years in prison;

Boston to eight years in prison; and Matthews to nine years in

prison.

Brown, Boston, Adona, and Matthews now appeal.

II

Brown challenges the district court’s jury instructions and

his sentence.

A

Brown challenges three aspects of the jury instructions.

1

Breal Hicks and Conovia Eddie also pled guilty, but they have not

appealed their sentences.

7

First, in its instructions to the jury, the district court stated

that Brown had previously been convicted in the D.C. Superior

Court for possession of an unregistered firearm. Brown

argues on appeal that the district court erred when it informed

the jury of Brown’s prior firearm conviction. The problem for

Brown is that he not only did not object to this instruction at

trial, but he affirmatively invited this instruction. Brown’s

counsel insisted that the jury be informed of the prior

conviction, presumably because of a strategic judgment in the

context of all of the evidence and instructions in the case. A

defendant may not complain about invited error. See, e.g.,

United States v. Ginyard, 215 F.3d 83, 88 (D.C. Cir. 2000).

Because Brown invited the error, he may not now complain of

the error on appeal.

Second, Brown contends that the district court failed to

give a special unanimity instruction with respect to the

possession with intent to distribute PCP charge. Brown

contends that jurors may have relied on different testimonial

and physical evidence to conclude that he was guilty on that

count. He claims that the jurors’ reliance on different facts to

support his conviction violates the Sixth Amendment. Brown

did not raise this argument in the district court. Therefore, our

review is for plain error. We need not dally on this argument.

Because there is no precedent of the Supreme Court or this

court requiring a district court to give a special unanimity

instruction sua sponte in circumstances like those in this case,

the district court’s failure to do so cannot constitute plain error.

See United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir.

2008). Indeed, in Hurt, this court held that “the trial court’s

failure to give a special unanimity instruction sua sponte was

not plain error,” and Brown makes no argument that would

distinguish his case from Hurt’s. Id. at 1352. As a result,

Brown’s argument is unavailing.

8

Third, Brown contends that the burglary instruction was

inadequate. The crime of burglary requires proof that the

accused person entered the dwelling of another with the intent

to commit an identified offense. See D.C. Code § 22-801(a).

The district court instructed the jury that it must find that “the

defendant intended to use Mr. Clifton’s apartment as a place to

possess and store narcotics.” Trial Tr. 31 (Mar. 17, 2015).

The district court further explained that Brown must have

“intended to commit a crime” on the premises. Id. Brown

contends that instruction was insufficient because it did not

identify the narcotics as unlawful narcotics. We disagree. In

context, the burglary instruction plainly referred to illegal

drugs. Any rational juror would have easily understood that

the burglary charge related to Brown’s allegedly entering

Clifton’s apartment with the intent to store illegal drugs.

B

Brown argues that the district court, in sentencing Brown,

incorrectly attributed 100 to 400 grams of PCP to him. But

Brown is simply mistaken about the district court’s factual

finding. Brown was not sentenced for possessing more than

100 grams of PCP. He was sentenced for possessing 76.6

grams. The probation office determined that “Mr. Brown is

accountable for 76.6 grams of PCP resulting in a base offense

level of 20.” At sentencing, the district court said that it was

adopting the probation office’s finding of 76.6 grams. We

further know that the district court adopted the probation

office’s finding because a finding that Brown possessed 100 or

more grams would have resulted in a base offense level of 24.

A finding that he possessed 76.6 grams would mean a base

offense level of 20. The district court calculated Brown’s base

offense level to be 20.

9

III

Marquette Boston argues that there was insufficient

evidence to convict him of possession with intent to distribute

PCP.

When reviewing sufficiency claims, we “accept the jury’s

guilty verdict” if “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

United States v. Andrews, 532 F.3d 900, 903 n.1 (D.C. Cir.

2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))

(internal quotation marks omitted). We view the evidence in

the light most favorable to the government. See id. at 904 n.1.

Boston was not found with PCP on his person, but rather

near illegal drugs inside of Conovia Eddie’s apartment. But

the evidence tying Boston to the PCP was substantial. First, a

key to Eddie’s apartment was found on Boston, although he did

not live there. Possession “of a key” may be “sufficient to

establish constructive possession.” United States v. Dingle, 114

F.3d 307, 311 (D.C. Cir. 1997). Second, Boston’s presence

inside the apartment was consistent with Little Mexico’s

method of operation of using others’ apartments as trap houses.

Third, the officers had to use a battering ram for roughly a

minute to gain access to the apartment when they were not

admitted after their knock and announce. See Trial Tr. 107

(Mar. 3, 2015 a.m.). A reasonable jury could have considered

that to be evasive conduct on Boston’s part indicating

constructive possession of the contraband found inside the

apartment. See United States v. Dorman, 860 F.3d 675, 680

(D.C. Cir. 2017). Fourth, the officers testified at trial that they

smelled PCP coming from the bathroom. Boston was

standing near the bathroom at the moment that the police

entered, and the toilet had been recently flushed. Fifth, a vial

containing PCP residue was found in the apartment and had

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Boston’s left palm print on it. Sixth, a woman named

Monique Mathis testified at trial that Boston sold PCP in

Woodberry Village.

Viewing all of the evidence in the light most favorable to

the government, a rational jury could conclude that Boston

possessed PCP and, using Eddie’s apartment as a base of

operations, intended to distribute PCP.

IV

We next turn to Ira Adona’s appeal. The only defendant-

appellant to plead guilty, Adona raises a single challenge to his

108-month federal prison sentence. In his view, the district

court should have sentenced him concurrently with, rather than

consecutively to, a D.C. Superior Court sentence that stemmed

from his federal guilty plea. To reach that argument, we first

must determine whether Adona waived his right to this appeal.

We conclude that the appeal is not barred and that the district

court plainly erred in its consecutive-sentencing analysis. We

therefore vacate Adona’s sentence and remand for

resentencing.

A

The government contends that Adona’s sentence is not

subject to appeal because his plea agreement waived his right

to appeal his sentence except in specified circumstances. Like

all other courts of appeals, our circuit holds that a defendant

“may waive his right to appeal his sentence as long as his

decision is knowing, intelligent, and voluntary.” United

States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009).

Adona’s plea agreement, which he signed in April 2014, stated:

Your client agrees to waive the right to appeal the

sentence in this case, . . . and the manner in which the

11

sentence was determined, except to the extent the

Court sentences your client above the statutory

maximum or guidelines range determined by the

Court, in which case your client would have the right

to appeal the illegal sentence or above-guidelines

sentence, but not to raise on appeal other issues

regarding the sentencing.

Plea Agreement 7. Adona’s sentence did not qualify under

either of the specified exceptions: it was not above either the

statutory maximum or the Guidelines range determined by the

court. Accordingly, were we to look only at the written plea

agreement, that would end the matter, and the appeal would be

barred. See United States v. Hunt, 843 F.3d 1022, 1027 (D.C.

Cir. 2016) (noting that we “ordinarily dismiss an appeal falling

within the scope of [an appeal] waiver”).

But although we start with the text of the plea agreement,

we cannot end there: our duty to ensure that an appeal waiver

is knowing, intelligent, and voluntary requires us to examine

also the colloquy with the judge during which Adona entered

his guilty plea. See, e.g., Hunt, 843 F.3d at 1028-29; United

States v. Kaufman, 791 F.3d 86, 88 (D.C. Cir. 2015); United

States v. Godoy, 706 F.3d 493, 495 (D.C. Cir. 2013). Such

plea colloquies are required by Federal Rule of Criminal

Procedure 11(b), and aim “to dispel any misconceptions that

the defendant may have about his likely sentence” and to

correct or clarify any “erroneous information given by the

defendant’s attorney.” United States v. Horne, 987 F.2d 833,

838 (D.C. Cir. 1993) (internal quotation marks omitted). The

Supreme Court has admonished that Rule 11’s “procedural

safeguards serve[] important constitutional interests in

guarding against inadvertent and ignorant waivers of

constitutional rights.” United States v. Vonn, 535 U.S. 55, 67

(2002). Accordingly, we have instructed that “courts

12

conducting plea colloquies must scrupulously adhere to the

obligations of Rule 11.” United States v. Shemirani, 802 F.3d

1, 3 (D.C. Cir. 2015).

As relevant to this appeal, Rule 11(b) instructs a trial court

to “inform the defendant of, and determine that the defendant

understands, . . . the terms of any plea-agreement provision

waiving the right to appeal or to collaterally attack the

sentence” before accepting a guilty plea. FED. R. CRIM. P.

11(b)(1)(N). In prior cases, we have assiduously assured

compliance with this rule. Noting that “[c]riminal defendants

need to be able to trust the oral pronouncements of district court

judges,” we have scrutinized Rule 11 colloquies to ensure that

district courts accurately explain the scope of defendants’

appeal waivers. Godoy, 706 F.3d at 495 (quoting United States

v. Wood, 378 F.3d 342, 349 (4th Cir. 2004) (internal quotation

marks omitted)). Specifically, we have examined whether

“the district court mischaracterized the meaning of the waiver

in a fundamental way.” Id. If so, “the district court’s oral

pronouncement controls,” and the “appeal is not barred.” Id.

at 496; see Hunt, 843 F.3d at 1028-29; Kaufman, 791 F.3d at

88; United States v. Fareri, 712 F.3d 593, 594-95 (D.C. Cir.

2013).

We focus our analysis on what the district court told

Adona during the plea colloquy. When explaining to Adona

the rights that his guilty plea would waive, the district court

stated:

Now, with regard to certain circumstances, you may

even have an opportunity, the right to appeal the

sentence of this court on the grounds of

reasonableness. Do you understand that?

Adona Plea Hearing Tr. 10 (Nov. 5, 2014). Adona answered

in the affirmative. Id.

13

The court’s statement described a different right to appeal

than that contained in the written appeal waiver. “Taken for

its plain meaning – which is how criminal defendants should

be entitled to take the statements of district court judges,”

Godoy, 706 F.3d at 495 – the district court’s statement

suggested to Adona that he could appeal a sentence he thought

unreasonable. Because “the district court mischaracterized

the meaning of the waiver in a fundamental way,” “the district

court’s oral pronouncement controls,” and the “appeal is not

barred.” Id. at 495-96.

The district court’s statement is not saved by its

conditional nature. The court’s use of “may” was hardly

clarifying because “may” can mean “can” as well as “might.”

See BLACK’S LAW DICTIONARY 1127 (10th ed. 2014). Nor is

the statement saved by the “with regard to certain

circumstances” language, which was unaccompanied by any

description of what those “certain circumstances” were or were

not. See Kaufman, 791 F.3d at 88 (vitiating plea waiver where

the court initially told the defendant that he “would still have

the right to appeal the sentence if [he] believe[d] the sentence

is illegal,” and later told him that he “might have the right to

appeal, under some circumstances, if he did not ‘like’ the

sentence”); cf. Fareri, 712 F.3d at 594 (vitiating appeal waiver

where the district court declared, without further explanation,

that the defendant “probably retain[ed] the right” to appeal

certain sentences). By leaving those circumstances

unexplained, the district court failed to “inform the defendant

of . . . the terms of any plea-agreement provision waiving the

right to appeal,” as Rule 11(b) requires.

We also cannot uphold the waiver on the grounds that

“reasonableness” is a “legal term of art” in the Sentencing

Guidelines context. See United States v. Ingram, 721 F.3d 35,

43 (2d Cir. 2013) (Calabresi, J., concurring). In assessing the

14

adequacy of plea colloquies, we do not assume familiarity with

criminal-law argot. Rather, we ask how a defendant like

Adona (who left school after completing eleventh grade,

Adona Plea Hearing Tr. 6) would understand the district court’s

pronouncement. See Godoy, 706 F.3d at 495. That is why,

in Godoy, we found that the mention of a right to appeal an

“illegal” sentence was misleading, even though the court’s

statement was technically accurate considering that “illegal

sentence” is a lawyerly term of art. Here, likewise, we do not

pause to parse the precise legal meaning of “reasonableness.”

Rather, we note that Adona surely thinks his sentence

unreasonable, and that his belief is not outside the common

meaning of that word.

The conclusion that the district court’s plea colloquy was

deficient does not end our analysis. Notwithstanding the

district court’s misstatement, the government contends that

Adona’s counsel “clarified any ambiguity” in the plea

colloquy. U.S. Br. 65 n.27. To assess this claim, we turn to

Adona’s counsel’s statement, which was as follows:

And I’ve advised Mr. Adona of what Your Honor said

to him in open court prior to this, that Your Honor . . .

would consider the advisory guidelines, but your

inclination was that that – the court would probably

depart upward and would state the reasons for that.

I’ve explained to Mr. Adona, and I think Your Honor

just went over briefly with him earlier, that under the

plea agreement he retains the right to appeal that

decision and – if Your Honor does do that.

Adona Plea Hearing Tr. 14.

We need not decide whether or under what circumstances

a statement by defense counsel may cure a district court’s

mischaracterization of a plea waiver because counsel’s

15

statement did not do so in this case. Contrary to the

government’s contention, Adona’s counsel did not state “that

Adona would retain the right to appeal only if the district court

sentenced him to an above-guidelines sentence.” U.S. Br. 65

n.27 (emphasis added). Instead, Adona’s counsel merely told

him that he retained the right to appeal an above-Guidelines

sentence, without suggesting that was the only category of

sentence he could appeal. Indeed, that was not the only

category of sentence he could appeal, even under the written

plea agreement – which permitted him also to appeal a sentence

“above the statutory maximum.” Plea Agreement 7.

Accordingly, because counsel’s statement made no effort to

mark the metes and bounds of appealable sentences, it did

nothing to inform Adona of the true scope of his appeal waiver.

Nor did the government say anything to clarify or correct

the record – despite our recent admonition that “the United

States Attorney’s Office would be well advised to develop

instructions and training for its attorneys to make it part of their

routine practice to help ensure that district courts fulfill each of

the requirements of Rule 11 . . . when a defendant enters a

plea.” Shemirani, 802 F.3d at 3. Had the government

immediately corrected the record, it could have preserved its

appeal waiver and obviated the need for the past several pages

of this opinion. Because it did not, we now proceed to

addressing the merits of Adona’s appeal.

B

Adona raises a number of arguments about the district

court’s decision to sentence him consecutively to, rather than

concurrently with, his Superior Court sentence. Only one of

them, which concerns the district court’s failure to take into

account Section 5G1.3(b) of the United States Sentencing

Guidelines, has merit. Because Adona failed to assert this

16

argument in the district court, we review it for plain error only.

United States v. Andrews, 532 F.3d 900, 908 (D.C. Cir. 2008).

Under that standard, “[t]here must be (1) error, (2) that is plain,

and (3) that affect[s] substantial rights. If all three conditions

are met, an appellate court may then exercise its discretion to

notice a forfeited error, but only if (4) the error seriously

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

proceedings.” Id. (quoting Johnson v. United States, 520 U.S.

461, 467 (1997)); see United States v. Olano, 507 U.S. 725,

731-36 (1993).

1

The district court accepted Adona’s plea agreement in

November 2014. As part of his guilty plea, Adona admitted

to conspiring to distribute and possess PCP, in violation of 21

U.S.C. §§ 841, 846. He proffered that he “knowingly and

intentionally distributed PCP in vials and cigarette ‘dippers,’”

that he “kept, stored, shared, and maintained firearms” within

Woodberry Village, and that he undertook these activities in

conspiracy with his five co-defendants. Plea Agreement 14.

The agreement also required Adona to plead guilty to a

D.C. Superior Court charge of attempted assault with a

dangerous weapon, in violation of 22 D.C. Code §§ 402, 1803.

That charge stemmed from Adona’s shooting of Karl

Carrington, who had attempted to purchase marijuana from

Adona. Plea Agreement 15.

Prior to entering Adona’s plea, the district court made

clear that it would accept the deal only on the condition that

Adona would “be sentenced and plead first in Superior Court.”

Adona Status Conf. Tr. 6 (Oct. 7, 2014). This requirement,

the court explained, was so “I have the option, which I will

exercise, to sentence [Adona] consecutively.” Id. The

district court announced in the same hearing that Adona’s

17

“guideline range is not proportionate to the seriousness of [his]

conduct,” and that Adona “should know going in, that there is

not much, if any, likelihood that there will be a sentence from

this Court within the guideline range.” Id. at 5-6.

On October 29, 2014, pursuant to the plea agreement,

Adona pled guilty to the attempted assault charge in Superior

Court. On January 30, 2015, the court sentenced Adona to 28

months’ imprisonment on that charge.

Adona’s shooting of Carrington also affected the

calculation of his federal Guidelines range. The Probation

Office’s pre-sentence investigation report (PSR) recited that

Adona “shot Mr. Karl Carrington in the back.” 2 It therefore

recommended that Adona’s offense level be “enhanced two

levels because of his use of violence” in related conduct.

Adona PSR 15; see U.S.S.G. § 2D1.1(b)(2).

In a July 2015 presentencing hearing, Adona’s counsel

protested the consequences of the use-of-violence

enhancement. He asked the district court to “take into

consideration” the 28-month Superior Court sentence, noting

that it penalized the same behavior as did the use-of-violence

enhancement. Adona Status Hearing Tr. 34 (July 28, 2015).

Specifically, he argued, the district court should run the portion

of its sentence that stemmed from the use-of-violence

enhancement concurrently with the Superior Court sentence.

Otherwise, counsel contended, Adona would be “punished

twice.” Id. at 35.

2

The PSR was filed under seal. “Insofar as we refer to information

derived from the PSR, it is unsealed to the limited extent referenced

in this opinion, although the full document shall remain physically

withheld from public review.” United States v. Reeves, 586 F.3d 20,

22 n.1 (D.C. Cir. 2009).

18

The district court initially seemed amenable to this

argument. Declaring that Adona’s counsel made a “good

point,” and that the use-of-violence enhancement could be

“punishing [Adona] twice for the same thing,” the court

queried whether it should simply drop the enhancement

altogether:

So why wouldn’t the prudent thing to do for a judge

in this situation is to not give him the two points for

violence, take that issue off the table for any appeal

down the road . . . . I have plenty of discretion with

regard to consecutive sentenc[ing] for the shooting

over in the Superior Court. Why create the issue?

Why create legal problems when I don’t need to?

Id. at 36, 38. Eventually, however, the court decided to accept

the use-of-violence enhancement – but not before Adona’s

counsel again asked the court to “take into consideration” the

double-counting issue, and not before the district court

responded, “I absolutely will. You have my commitment to

that . . . .” Id. at 40.

We come, finally, to the sentencing hearing itself, where

Adona’s counsel again requested a partially concurrent

sentence. At this hearing, however, the district court was less

receptive, stating, “You’ve heard the Court speak about

consecutive sentence[s]. Obviously, you know it’s going to be

a consecutive sentence to what happened over in the Superior

Court.” Adona Sentencing Hearing Tr. 24 (Sept. 29, 2015).

Accordingly, the court ordered Adona to serve 108 months’

incarceration (the top of the Sentencing Guidelines range), to

run consecutively to his Superior Court sentence.

19

2

In general, Congress affords the courts discretion in

deciding whether to sentence defendants convicted of multiple

crimes concurrently or consecutively. Regardless of whether

“multiple terms of imprisonment are imposed on a defendant

at the same time” or “a term of imprisonment is imposed on a

defendant who is already subject to an undischarged term of

imprisonment,” the district court may assign a sentence to “run

concurrently or consecutively.” 18 U.S.C. § 3584(a).

Congress instructs judges deciding this question to consider the

same factors, enumerated in 18 U.S.C. § 3553(a), that bear on

the length of a defendant’s sentence. Id. § 3584(b). Those

factors include the nature of the offense, the history of the

defendant, and – crucially for this case – the Guidelines issued

by the United States Sentencing Commission. Id.

§ 3553(a)(1), (4).

The Guideline that is relevant here is U.S.S.G. § 5G1.3,

“Imposition of a Sentence on a Defendant Subject to an

Undischarged Term of Imprisonment or Anticipated State

Term of Imprisonment.” Section 5G1.3, which “operates to

mitigate the possibility that the fortuity of two separate

prosecutions will grossly increase a defendant’s sentence,”

Witte v. United States, 515 U.S. 389, 405 (1995), provides in

relevant part:

(b) If . . . a term of imprisonment resulted from

another offense that is relevant conduct to the instant

offense of conviction under the provisions of

subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3

(Relevant Conduct), the sentence for the instant

offense shall be imposed as follows:

....

20

(2) the sentence for the instant offense shall be

imposed to run concurrently to the remainder of

the undischarged term of imprisonment.

U.S.S.G. § 5G1.3(b) (emphasis added).

The government does not dispute that the district court

treated Adona’s Superior Court term of imprisonment for

assault as having “resulted from another offense that is relevant

conduct to the instant offense of conviction,” i.e., the federal

drug charge. See U.S. Br. 72 (“The Carrington shooting . . .

was ‘relevant conduct’ for the purposes of Adona’s conspiracy

sentencing.”). Otherwise, the district court could not have

taken the Carrington shooting into account when assigning a

use-of-violence enhancement, and we would be presented with

a different (although equally plain) Sentencing Guidelines

error. See U.S.S.G. § 1B1.3(a) (providing that, in determining

Guidelines enhancements, the sentencing court may only take

into account relevant conduct); United States v. Mellen, 393

F.3d 175, 182 (D.C. Cir. 2004) (same). Accordingly, “the

sentence for the instant offense” should have been “imposed to

run concurrently to the remainder of the undischarged term of

imprisonment.” U.S.S.G. § 5G1.3(b)(2); see United States v.

Nania, 724 F.3d 824, 830-34 (7th Cir. 2013). This conclusion

follows inexorably from the text of § 5G1.3(b), and the

government does not disagree.

“Of course, given the advisory nature of the Sentencing

Guidelines, a district court has no obligation to impose a

concurrent sentence, even if § 5G1.3(b) applies.” Nania, 724

F.3d at 830; see United States v. Booker, 543 U.S. 220, 245

(2005). But a court must nonetheless “begin all sentencing

proceedings by correctly calculating the applicable Guidelines

range.” Gall v. United States, 552 U.S. 38, 49 (2007); see

Booker, 543 U.S. at 264 (requiring sentencing courts to

21

“consult” and “take . . . into account” the Guidelines). The

district court did not do so here.

3

Because the district court did not acknowledge that the

Guidelines recommended a concurrent sentence, it improperly

applied the Guidelines. That misapplication was error.

Moreover, the court’s error was “plain” – that is, “clear”

or “obvious.” Olano, 507 U.S. at 734. The government does

not contest this prong of the plain-error analysis either, and for

good reason: “failing to calculate (or improperly calculating)

the Guidelines range” is “significant procedural error,” Gall,

552 U.S. at 51, that rises to the level of plain error, at least

where the text of the Guidelines is clear.

That error prejudiced Adona. As the Supreme Court

recently explained, “[w]hen a defendant is sentenced under an

incorrect Guidelines range[,] . . . the error itself can, and most

often will, be sufficient to show a reasonable probability of a

different outcome absent the error.” Molina-Martinez v.

United States, 136 S. Ct. 1338, 1345 (2016). “Indeed,” the

Court continued, “in the ordinary case a defendant will satisfy

his burden to show prejudice by pointing to the application of

an incorrect, higher Guidelines range and the sentence he

received thereunder. Absent unusual circumstances, he will

not be required to show more.” Id. at 1347; see United States

v. Burnett, 827 F.3d 1108, 1121 (D.C. Cir. 2016).

The government contends that unusual circumstances are

present here. It asserts that the district court “made clear” that

it planned to sentence Adona to a “lengthy, and consecutive,”

sentence. U.S. Br. 70 (citing Adona Sentencing Hearing Tr.

15, 24). Accordingly, in its view, “Adona could not show that,

had the court expressly considered § 5[G]1.3(b), it would have

22

run part of the federal sentence concurrently instead.”

Id.

The government’s argument misstates the standard for

prejudice. In the sentencing context, a defendant need not

show that a sentence would have issued differently but for the

district court’s plain error. He need demonstrate only a

“reasonable likelihood that the sentencing court’s obvious

errors affected his sentence.” United States v. Saro, 24 F.3d

283, 288 (D.C. Cir. 1994); see Molina-Martinez, 136 S. Ct. at

1343. The statements of the district court that the government

cites hardly preclude a reasonable likelihood of a different

result – especially because the government omits to mention

the district court’s various statements, noted above, indicating

that it was willing to consider the double-counting problem.

See Adona Status Hearing Tr. 36, 38, 40.

Finally, having concluded that Adona has demonstrated an

error that was clear and that affected his substantial rights, we

exercise our discretion to correct the district court’s plain error.

“We have repeatedly opted to correct plain sentencing errors

that, if left uncorrected, would result in a defendant serving a

longer sentence.” In re Sealed Case, 573 F.3d 844, 853 (D.C.

Cir. 2009); United States v. Coles, 403 F.3d 764, 767 (D.C. Cir.

2005) (“[I]t is a miscarriage of justice to give a person an illegal

sentence that increases his punishment . . . .” (quoting United

States v. Paladino, 401 F.3d 471, 483 (7th Cir. 2005)). We

therefore vacate Adona’s sentence and remand for

resentencing. On remand, the district court must consider –

but is not bound by – the guidance of § 5G1.3(b).

V

The government obtained a wide-ranging indictment that

charged the then-22-year-old Keith Matthews with twenty-two

23

criminal counts, including conspiracy, drug, firearms,

extortion, assault, kidnapping, and robbery offenses. By trial,

the government had lost or abandoned all but eight of those

charges. The jury ultimately acquitted Matthews of each

remaining offense, save one: unlawful possession of a firearm

as a felon, in violation of 18 U.S.C. § 922(g)(1).

Matthews does not challenge his conviction for that single

offense, only his sentence. The district court agreed with the

Probation Office that the relevant Sentencing Guidelines range

was 78 to 97 months. After studying the characteristics of

Matthews’ criminal conduct and his background, the Probation

Office specifically determined that nothing warranted an

upward variance in Matthews’ case. Nevertheless, the district

court sentenced Matthews to 108 months of imprisonment, a

38% increase above the lower portion of the range and an 11%

increase above the very top of the range.

Matthews challenges both the district court’s calculation

of the Guidelines range and its imposition of an above-

Guidelines sentence. We review a sentencing court’s

determinations in two steps, asking first whether the court

committed procedural error in calculating the defendant’s

sentence, and next whether the sentence imposed was

substantively reasonable. In re Sealed Case, 527 F.3d 188,

190-191 (D.C. Cir. 2008). We hold that the district court

properly calculated Matthews’ Sentencing Guidelines range,

but it failed to explain adequately its variance from that range.

For that reason, we vacate Matthews’ sentence and remand for

resentencing.

24

A

We review de novo the district court’s interpretation of the

Sentencing Guidelines in calculating a defendant’s Sentencing

Guidelines range. In re Sealed Case, 548 F.3d 1085, 1090

(D.C. Cir. 2008).

For felon-in-possession offenses, a defendant’s base

offense level turns on numerous factors including, as relevant

here, the defendant’s prior criminal history. If the defendant

has “one [prior] felony conviction of either a crime of violence

or a controlled substance offense” and the offense involves a

firearm of the type described in 26 U.S.C. § 5845(a), the

defendant receives a base offense level of 22. U.S.S.G.

§ 2K2.1(a)(3). If the defendant does not have such a

qualifying prior conviction, he receives a base level of either

18 or 20, depending on the presence of other aggravating

factors. Id. § 2K2.1(a)(5). 3

In computing Matthews’ Guidelines range for his unlawful

possession of a firearm, the district court concluded that

Matthews’ conviction five years earlier for attempted assault

with a dangerous weapon under District of Columbia law, 22

D.C. Code § 402, qualified him for a “crime of violence”

enhancement under Guidelines Section 2K2.1(a)(3). That

3

More specifically, Section 2K2.1(a)(3) provides that the

defendant’s “Base Offense Level” will be: “22, if (A) the offense

involved a (i) semiautomatic firearm that is capable of accepting a

large capacity magazine; or (ii) firearm that is described in 26 U.S.C.

§ 5845(a); and (B) the defendant committed any part of the instant

offense subsequent to sustaining one felony conviction of either a

crime of violence or a controlled substance offense[.]”

25

determination increased Matthews’ base offense level by four

points from 18 to 22. U.S.S.G. § 2K2.1(a)(3) (2014). 4

Matthews argues that attempted assault with a dangerous

weapon does not qualify as a “crime of violence,” and for that

reason his base offense level should have been four points

lower and his sentencing range reduced to 51 to 63 months.

But settled circuit precedent establishes that Matthews’ earlier

conviction falls within the elements clause, and so the district

court properly applied the offense-level adjustment in

calculating Matthews’ Sentencing Guidelines range.

The Guidelines that governed Matthews’ sentencing

defined a “crime of violence” as “any offense” punishable by a

year or more of imprisonment that

(i) “has as an element the use, attempted use, or

threatened use of physical force against the person

of another,”

(ii) “is burglary of a dwelling, arson, or extortion,

involves use of explosives,” or

(iii) “otherwise involves conduct that presents a serious

potential risk of physical injury to another.”

U.S.S.G. § 4B1.2(a) (2014). That first criterion for qualifying

as a crime of violence is known as the “elements” clause. The

second is often described as the “enumerated offense”

provision. And the third has been labeled the “residual”

clause.

4

These calculations are based on the November 2014 Sentencing

Table, the matrix in effect at the time of Matthews’ sentencing.

26

To determine whether Matthews’ prior conviction for

attempted assault with a dangerous weapon qualifies under the

elements clause, the district court properly applied the

“categorical approach” and asked whether the elements of

attempted assault with a dangerous weapon necessarily require

“the use, attempted use, or threatened use” of “violent” force.

Johnson v. United States, 559 U.S. 133, 136, 140, 145 (2010);

United States v. Castleman, 134 S. Ct. 1405, 1413 (2014).

That analysis looks only to the elements of the crime to

determine whether, by its terms, commission of the crime

inherently (i.e., categorically) requires the kind of force

“capable of causing physical pain or injury to another person”

in all cases. Johnson, 559 U.S. at 140. If it is possible to

commit the crime without the use, attempted use, or threatened

use of violent force, the offense-level enhancement does not

apply, regardless of whether the defendant’s actual conduct in

perpetrating the offense would individually qualify. See

Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (holding

that courts generally may not look to the facts of a defendant’s

conviction when applying the categorical approach).

The relevant District of Columbia Code provision casts

little informative light on the elements of the crime of

attempted assault with a deadly weapon. See 22 D.C. Code

§ 402. But case law has identified its elements as: (1) “an

attempt, with force or violence, to injure another, or a menacing

threat, which may or may not be accompanied by a specific

intent to injure;” (2) “the apparent present ability to injure the

victim;” (3) a general “intent to commit the acts which

constitute the assault;” and (4) “the use of a dangerous weapon

in committing the assault.” Spencer v. United States, 991

A.2d 1185, 1192 (D.C. 2010) (internal quotation marks

omitted).

27

Given that fourth element – the required use of a

dangerous weapon – circuit precedent forecloses Matthews’

argument that attempted assault with a deadly weapon is not a

crime of violence within the meaning of the elements clause,

U.S.S.G. § 4B1.2(a)(1) (2014). In United States v. Redrick,

841 F.3d 478 (D.C. Cir. 2016), this court had “little difficulty”

in concluding that the parallel offense of armed robbery under

Maryland law “contains as an element the use, attempted use,

or threatened use of physical force against the person of

another” precisely because of its requirement that the defendant

commit the crime with the use of a dangerous or deadly

weapon. Id. at 484 (internal quotation marks omitted).

Specifically, the court ruled that the offense of robbery is an

offense against an individual, and that the use of a dangerous

weapon as part of that crime transformed the threat of force

present in simple robbery into a threat of violent force. Id.

(“Certainly the additional element of ‘use’ of a dangerous or

deadly weapon supplies at minimum a ‘threat’ of physical force

against the person of another. And because the means

employed is a ‘dangerous or deadly weapon,’ the required

degree of force – that is, ‘violent force’ – is present.”)

(emphasis in original). 5

So too here. Assault is an offense against an individual,

and adding a dangerous weapon into the mix makes the crime

an inherently violent one. Use of that weapon as part of the

crime materially increases the risk that violence will ensue.

5

Matthews does not suggest that his offense falls outside the crime

of violence definition because it allows for a mens rea of

recklessness. Cf. Voisine v. United States, 136 S. Ct. 2272, 2278

(2016) (holding that a “reckless domestic assault qualifies as a

misdemeanor crime of violence” under the use-of-force provision).

28

To be sure, Matthews was convicted of attempt, rather than

the substantive assault crime itself. But that is a distinction

without a difference. The use-of-force clause refers explicitly

to offenses that have as an element “the . . . attempted use . . .

of physical force against the person of another.” U.S.S.G. §

4B1.2 (emphasis added). Linking to that text, the commentary

to the Sentencing Guidelines specifically states that a crime of

violence “include[s] the offenses of aiding and abetting,

conspiring, and attempting to commit such offenses.”

U.S.S.G. § 4B1.2, cmt. 1; see United States v. Winstead, __

F.3d __, No. 12-3036, 2018 WL 2372193, at * 8 (D.C. Cir. May

25, 2018) (citing the crime-of-violence definition for the

proposition that the Sentencing Commission “knows how to

include attempted offenses when it intends to do so”); see also

James v. United States, 550 U.S. 192, 198 (2007) (observing

that the “attempted use” language of the Armed Career

Criminal Act’s similarly worded elements clause demonstrated

“Congress’ inclusion of attempt offenses”).

Matthews, moreover, does not argue that D.C. “attempt”

differs from generic attempt in any way that would place it

outside the Guidelines’ commentary. Nor does he contend

that including his attempt offense as the commentary indicates

would “violate[] the Constitution or a federal statute, or [be]

inconsistent with, or a plainly erroneous reading of, that

guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). 6

Instead, Matthews contends that D.C.’s attempted assault

with a dangerous weapon is more akin to Massachusetts’ law

governing robbery with a dangerous weapon, a crime that the

6

Winstead, in any event, would foreclose such a belated challenge

by Matthews. See Winstead, __ F.3d at __, No. 12-3036, 2018 WL

2372193, at * 6 (“[W]e would not reverse the district court’s decision

on the guidelines issue under [the plain error] standard.”).

29

Ninth Circuit has held does not categorically require the use or

threat of violent force. See United States v. Parnell, 818 F.3d

974 (9th Cir. 2016). But Massachusetts’ offense requires only

the possession of a dangerous weapon, not its use. Id. at 980.

“[B]y two oddities of Massachusetts law,” the crime of robbery

with a dangerous weapon covers robberies that do not involve

“violence or intimidation of any sort,” including in situations

where the weapon is present but plays no role in the offense

itself. Id. at 982 (Watford, J., concurring). By contrast,

assault with a dangerous weapon under District of Columbia

law requires both intimidation and the actual use of a dangerous

weapon. See Spencer, 991 A.2d at 1192 (listing “the use of a

dangerous weapon in committing the assault” as an element of

the offense).

The District of Columbia cases that Matthews cites show

only that the victim need not subjectively know that the

defendant is using a dangerous weapon; the requirement that

the defendant “use” the weapon – and thus that the firearm play

an actual role in the offense – remains. See, e.g., Parks v.

United States, 627 A.2d 1, 6 (D.C. 1993) (upholding assault

with a dangerous weapon conviction where the defendant

reached for a gun and raised it to his knee without the officer’s

awareness). Even when the victim is unaware that the

perpetrator has a dangerous weapon, the defendant’s use or

attempted use of a weapon for his own purposes during the

crime creates a serious threat that physical violence will result.

In sum, a straightforward application of Redrick to

Matthews’ case confirms that the district court properly set

Matthews’ base offense level at 22 because of his prior

30

conviction for attempted assault with a dangerous weapon

under D.C. law. 7

B

With circuit precedent this time at his back, Matthews

fares much better on his claim that the district court failed

adequately to explain his above-Guidelines sentence.

Ordinarily, we review asserted procedural error in a

sentencing decision for an abuse of discretion. See In re

Sealed Case, 527 F.3d at 190. But because Matthews raised

this issue for the first time on appeal, we will reverse only for

plain error. United States v. Mahdi, 598 F.3d 883, 888 (D.C.

Cir. 2010). Accordingly, Matthews bears the burden of

showing that the district court committed an error that is plain,

affects his substantial rights, and “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id.

Thrice before, this court has held that an inadequately

explained and insufficiently particularized upward variance

constitutes plain error. See, e.g., United States v. Brown, 808

F.3d 865, 867, 872 (D.C. Cir. 2015); United States v. Akhigbe,

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

F.3d at 191-192. Today marks the fourth time.

“It has been uniform and constant in the federal judicial

tradition for the sentencing judge to consider every convicted

person as an individual and every case as a unique study in the

7

Because Matthews’ conviction qualifies as a crime of violence

under the elements clause of U.S.S.G. § 4B1.2 (2014), we need not

wrestle with the language of the residual clause. (We note that the

Sentencing Commission has since removed the residual clause. See

U.S.S.G., Supp. App. C, Amdt. 798 (effective Aug. 1, 2016)).

31

human failings that sometimes mitigate, sometimes magnify,

the crime and the punishment to ensue.” Gall v. United States,

552 U.S. 38, 52 (2007) (citation omitted). Accordingly, to

sustain an upward variance, the district court must undertake

an individualized assessment of the defendant’s particular

offense and characteristics, and then “must state the specific

reason why the defendant’s conduct was more harmful or

egregious than the typical case represented by th[e] [relevant

Sentencing Guidelines] range.” Brown, 808 F.3d at 867

(internal quotation marks and alterations omitted). And

Congress has commanded that the sentencing court must state

such reasons “with specificity.” 18 U.S.C. § 3553(c). The

court cannot satisfy that requirement with generic recitations of

the sentencing factors, but rather must articulate “why the court

believe[s]” that an above-Guidelines sentence is appropriate

“for this particular defendant.” Akhigbe, 642 F.3d at 1086.

In addition, when a court deviates from the Guidelines, it must

provide an explanation “sufficiently compelling to support the

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

Because the duty to provide the required individualized

explanation is settled law, a district court’s failure to spell out

its reasoning constitutes plain error. That error, moreover,

affects the defendant’s substantial rights and implicates the

fairness and integrity of the justice system because it precludes

meaningful appellate review. See Akhigbe, 642 F.3d at 1087-

1088 (“The district court’s failure to explain adequately the

sentence it imposed is prejudicial in itself because it precludes

appellate review of the substantive reasonableness of the

sentence, thus seriously affecting the fairness, integrity, or

public reputation of judicial proceedings.”) (internal quotation

marks and alterations omitted). This is true even if the length

of the sentence imposed “would otherwise be reasonable.” In

re Sealed Case, 527 F.3d at 193 (internal quotation marks

32

omitted). Appellate courts, after all, cannot evaluate the

reasonableness of the unexplained.

In analyzing the sufficiency of the district court’s decision,

we must first take account of what considerations were already

built into Matthews’ recommended Guidelines range. That is

because an upward variance is not supposed to reduplicate

punishment already meted out by the Guidelines’ range itself.

See Brown, 808 F.3d at 872 (noting that “the applicable

category of offense committed by the applicable category of

defendant . . . provides the bench mark for assessing whether

criminal behavior merits an upward variance”). So when

choosing an above-Guidelines sentence, it is critical that the

district court explain why the otherwise applicable Guidelines

calculation “does not fully account for the described criminal

conduct.” Id. And, as the Supreme Court recently reminded,

the district court must do so “with specificity.” Hughes v.

United States, __ U.S. __, No. 17-155, 2018 WL 2465187, at *

6 (June 4, 2018). 8

Matthews was convicted of unlawful possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). In calculating

the appropriate Guidelines range, the court enhanced

Matthews’ base offense level by two points for the possession

of multiple firearms, U.S.S.G. § 2K2.1(b)(1)(A), and (as noted

above) by four points for the use of an unlawful firearm in

conjunction with a prior crime of violence, id.

§ 2K2.1(b)(6)(B). Those enhancements almost doubled the

8

As the Supreme Court just reiterated, that duty to articulate the

grounds for an above-Guidelines sentence with particularity is fully

consonant with the “advisory only” nature of the Sentencing

Guidelines. Hughes, 2018 WL 2465187, at * 5. Insisting on such

reasoned explanation is a far cry from making the Guidelines

“talismanic.” Dissenting Op. at 5.

33

applicable sentencing range (from 51-63 months to 97-121

months). A two-point deduction for acceptance of

responsibility then brought Matthews’ final range down to 78-

97 months – a range still well-above the 51-63 months dictated

by his base offense level.

The district court concluded that the resulting Guidelines

range of 78 to 97 months, which the Probation Office had

expressly endorsed, was too low because Matthews was

involved in “drug dealing,” “some related acts of violence,”

and he “had a lot of weapons.” Matthews Sentencing Hearing

Tr. 27-28 (Sept. 1, 2015). But, as the Probation Office’s

calculations reflect, Matthews’ Guidelines range already

specifically accounted for those same factors by adding 46 to

58 months to his sentencing range through the six-point

enhancements of his base offense level. At no point did the

district court find or explain why that nearly 50% increase in

Matthews’ sentencing range was not enough punishment for

that same conduct. Nor did the district court identify any way

in which Matthews’ conduct “was more harmful or egregious”

than the mine run of defendants facing those same

enhancements. Brown, 808 F.3d at 866-867.

The district court’s remaining reasons amount to little

more than a recitation of the Section 3553(a) factors without

any individualized “application to the defendant being

sentenced.” Brown, 808 F.3d at 871 (citing Akhigbe, 642 F.3d

at 1086). Specifically, the court referenced a need “to deter”

Matthews and others from engaging in this kind of conduct, to

“protect the community,” and “to promote respect for the law.”

Matthews Sentencing Hearing Tr. 28-29.

Reciting the statutory factors is where the sentencing

calculus should start, not where it should end. Yet nothing in

the court’s decision tied those generic sentencing factors to

34

anything distinctive about Matthews’ crime or background that

would warrant increasing his sentence beyond the punishment

already captured by all the elements that went into his

individual Guidelines calculation. As it stands, the district

court’s decision is devoid of the “individualized reasoning”

necessary to understand why the court felt an upward variance

“was appropriate for this particular defendant” in a way that it

would not be for others to whom the same drug and firearms

enhancements are applied. Akhigbe, 642 F.3d at 1086.

The dissenting opinion asks only whether Matthews is a

more serious felon-in-possession than any other “ordinary

felon in possession.” Dissenting Op. at 8; see id. at 9. That

overlooks that Matthews’ sentencing range already accounts

for certain aggravating aspects of his firearm possession –

specifically, the number of weapons he possessed (two points)

and the fact that he possessed a firearm in conjunction with

other criminal activity (four points). To justify an upward

variance, the district court had to differentiate Matthews from

other defendants within the same heightened Guidelines range,

not just other defendants convicted of the same crime. See

Brown, 808 F.3d at 872; see also Hughes, 2018 WL 2465187,

at * 9 (federal law aims to ensure that “those who commit

crimes of similar severity under similar conditions receive

similar sentences”) (quoting Freeman v. United States, 564

U.S. 522, 533 (2011) (plurality opinion)).

Lastly, the district court said that it wanted to make an

example out of Matthews. Matthews Sentencing Hearing Tr.

29 (“And I’m [varying upwards] symbolically to make a point,

that it’s important that the people in the community, that you

and others see that this kind of conduct has to stop, that you

need to be deterred, they need to be deterred, and that the

community, of course, needs to respect the law, and you need

to respect the law.”). But we are never told why Matthews,

35

out of all offenders in the community, was singled out for such

messaging. The district court is silent about that. For all the

record shows, nothing marks Matthews out as peculiarly

deserving of even more punishment than the enhancements

already imposed or as presenting a particularly potent symbol

to other would-be offenders. Indeed, the Probation Office was

explicit that it “had not identified any factors that would

warrant a variance from the applicable guideline range based

on the factors outline[d] in 18 U.S.C. § 3553(a).” Matthews

PSR 10. Without any individualized reasoning, the decision

just to pick one defendant out for the systemic value of making

an example of him is the polar opposite of individualized

sentencing.

In short, at no point did the district court’s sentencing

colloquy offer the specific reason or reasons “why [it] found

[Matthews’] conduct more harmful or egregious than the

typical case accounted for in the properly calculated Guidelines

range.” Brown, 808 F.3d at 871 (internal quotation marks and

alterations omitted). Just as in Brown, the court’s “spare and

unparticularized” characterizations of Matthews’ conduct

“closely track[ed] the code provision to which [he] pled, . . .

and two of the specific offense characteristics included in his

Guidelines calculation.” 808 F.3d at 872. This court’s

precedent requires more.

As in Brown, Akhigbe, and In re Sealed Case, the court’s

written statement of reasons is even less illuminating than the

in-court sentencing colloquy. See Brown, 808 F.3d at 874;

Akhigbe, 642 F.3d at 1087; In re Sealed Case, 527 F.3d at 192.

That is because there is no actual written statement. In the

section of the sentencing form directing the court to “[e]xplain

the facts justifying a sentence outside the advisory guideline

36

system,” the form is completely blank. Matthews Statement

of Reasons 3. 9

The dissenting opinion identifies three concerns “one

might have about the sentence in this case,” and then submits

that, because “all three are policy-based,” they “do not qualify

as legal grounds for vacating the sentence.” Dissenting Op. at

12. We agree. The vacatur of Matthews’ sentence rests

exclusively on binding circuit precedent, not policy.

The dissenting opinion next accuses the court of conflating

substantive and procedural reasonableness. Dissenting Op.

at 10, 14. Not so. The failure to provide a sufficient

explanation for an above-Guidelines sentence is a procedural

failing, not a substantive one. Brown, 808 F.3d at 867

(“Brown also argues that the District Court’s explanation of the

above-Guidelines sentence was insufficient as a procedural

matter under § 3553(c)(2). We agree.”) (emphasis added);

Akhigbe, 642 F.3d at 1087 (“In In re Sealed Case, we found

plain procedural error where the district court imposed an

9

Because both the court’s oral and written statements lack the

requisite specificity, we need not address whether a flawed written

statement alone would warrant remand. See Brown, 808 F.3d at 874

(holding that the in-court and written statements “both are clearly

insufficient and independently amount to plain error”); see also 18

U.S.C. § 3742(f) (“If the court of appeals determines that . . . the

sentence is outside the applicable guideline range and the district

court failed to provide the required statement of reasons in the order

of judgment and commitment . . . it shall . . . set aside the sentence

and remand the case for further sentencing proceedings.”); cf. United

States v. Jackson, 848 F.3d 460, 465 (D.C. Cir. 2017) (refraining

from deciding whether a deficient written statement may “ever affect

the validity of an otherwise valid sentence,” but concluding that the

written deficiencies at issue did not affect the defendant’s

“substantial rights”).

37

above-Guidelines sentence ‘without providing any explanation

at all’ in open court and also submitted no written statement of

reasons.”) (emphasis added). And under settled circuit law,

imposing differentially harsh punishment without any

differentiating reason is plain error, since dispensing with

reasoned explanation eliminates meaningful appellate review.

See id.

The law’s demand that a court explain why a defendant is

treated more harshly than other similarly situated defendants

safeguards a fundamental component of justice: parity in

criminal sentencings. See United States v. Booker, 543 U.S.

220, 250 (2005) (“Congress’ basic statutory goal – a system

that diminishes sentencing disparity – depends for its success

upon judicial efforts to determine, and to base punishment

upon, the real conduct that underlies the crime of conviction.”);

see also Hughes, 2018 WL 2465187, at * 5 (sentencing courts

“need to avoid unwarranted sentencing disparities”). That

aspect of the process broke down in this case.

VI

For the foregoing reasons, we affirm Dawayne Brown’s

conviction and sentence and Marquette Boston’s conviction.

We vacate the sentences of Ira Adona and Keith Matthews and

remand for resentencing.

So ordered.

MILLETT, Circuit Judge, concurring: I write separately to

put an exclamation on a point I have previously expressed: the

constitutionally troubling use of acquitted conduct as the

specific basis for increasing a defendant’s prison sentence

above the Sentencing Guidelines range. “In a constitutional

system that relies upon the jury as the great bulwark of our civil

and political liberties,” allowing courts at sentencing “to

materially increase the length of imprisonment” based on

conduct for which the jury acquitted the defendant guts the role

of the jury in preserving individual liberty and preventing

oppression by the government. United States v. Bell, 808 F.3d

926, 929–930 (D.C. Cir. 2015) (Millett, J., concurring in the

denial of rehearing en banc) (internal quotation marks,

citations, and alterations omitted); see also id. at 928

(Kavanaugh, J., concurring in the denial of rehearing en banc).

Keith Matthews’ sentence provides yet another living

example of this problem. The government charged Matthews

with twenty-two counts of serious criminal conduct, including

assault, extortion, kidnapping, first-degree burglary while

armed, and a mélange of other drug- and violence-related

offenses. When Matthews pushed back by exercising his

constitutional right to a jury trial, the government’s indictment

collapsed like a house of cards. The district court dismissed

eight of the charges as so insubstantial that no rational juror

could vote to convict. See Fed. R. Crim. P. 29(a); United States

v. Boyd, 803 F.3d 690, 691–692 (D.C. Cir. 2015). For six

others, the government surrendered without a fight, expressly

declining even to present them to a jury. By the time

Matthews’ case reached the jury, his twenty-two counts had

dwindled to eight.

For seven of those remaining eight charges, the

government put on its best case. And it lost, hands down. The

jury acquitted Matthews of every single tried charge except

one: unlawful possession of firearm as a felon in violation of

18 U.S.C. § 922(g)(1). As our Constitution designed, the

2

People—a jury of Matthews’ peers—spoke loudly and clearly:

the only criminal conduct for which the government could

imprison Matthews was the unlawful possession of a single

firearm.

Unfortunately for Matthews, circuit precedent allowed the

government a second bite at the incarceration apple. The

government acknowledged at sentencing that Matthews “was

not convicted of” assaulting and burglarizing another

Woodberry resident. But let’s punish him anyhow, the

government urged, for exactly that acquitted conduct. Dkt. 402

at 11–12 (“We understand the jury’s verdict, but we also

understand that the Guidelines Range did not take into account

the factual evidence that this man was involved[.]”). The

government, it seems, did not understand what the jury meant

when it said “not guilty.”

To be sure, many considerations at criminal sentencing,

like the defendant’s background, criminal history, and other

mitigating or aggravating factors, need only be proved by a

preponderance of the evidence. But lumping acquitted conduct

in with those traditional factors and then using that acquitted

conduct to single a defendant out for distinctively severe

punishment—an above-Guidelines sentence—renders the jury

a sideshow. Without so much as a nod to the niceties of

constitutional process, the government plows ahead

incarcerating its citizens for lengthy terms of imprisonment

without the inconvenience of having to convince jurors of facts

beyond a reasonable doubt.

Incarceration without conviction is a constitutional

anathema. Bell, 808 F.3d at 932 (Millett, J., concurring in the

denial of rehearing en banc). Our constitutional system of

government reposes ultimate power in the People of the United

States to preserve and maintain liberty. The ultimate threat to

3

liberty and rule of the People, by the People, and for the People

is the power of the government to lock up and exercise

complete control over its citizens. The genius of the

Constitution’s protections for criminal defendants was to

prevent tyranny in that form by ensuring that an individual’s

liberty could only be stripped away by a jury of his peers upon

proof of a crime beyond a reasonable doubt. In re Winship, 397

U.S. 358, 362 (1970) (holding that these “rules are historically

grounded rights of our system, developed to safeguard men

from dubious and unjust convictions”) (internal quotation

marks omitted); id. at 363 (“The [reasonable-doubt] standard

provides concrete substance for the presumption of

innocence—that bedrock ‘axiomatic and elementary’ principle

whose ‘enforcement lies at the foundation of the administration

of our criminal law.’”). Allowing the government to lock

people up for a discrete and identifiable term of imprisonment

for criminal charges rejected by a jury is a dagger pointed at

the heart of the jury system and limited government.

I acknowledge that circuit precedent allows the

government to engage in this acquitted-conduct alchemy. See

United States v. Settles, 530 F.3d 920 (D.C. Cir. 2008). But I

do not have to like it or stay silent about what is, in my view, a

grave constitutional wrong.

KAVANAUGH, Circuit Judge, dissenting in part: The

majority opinion vacates the sentences of defendants Adona

and Matthews. I respectfully dissent on those two issues. I

would dismiss Adona’s appeal based on the appeal waiver in

his plea agreement. I would affirm Matthews’ sentence as

procedurally and substantively reasonable.

I

Ira Adona pled guilty to conspiracy to distribute PCP. The

written plea agreement included an appeal waiver. As relevant

here, the appeal waiver provided that Adona could appeal his

sentence only if his sentence was above the Guidelines range

determined by the District Court. The appeal waiver stated

quite clearly:

Your client agrees to waive the right to appeal the sentence

in this case, including any term of imprisonment, fine,

forfeiture, award of restitution, term of supervised release,

authority of the Court to set conditions of release, and the

manner in which the sentence was determined, except to

the extent the Court sentences your client above the

statutory maximum or guidelines range determined by the

Court, in which case your client would have the right to

appeal the illegal sentence or above-guidelines sentence,

but not to raise on appeal other issues regarding the

sentencing.

J.A. 108 (emphasis added). Adona and his counsel both signed

the plea agreement.

The District Court determined that Adona’s Guidelines

range spanned from 7 years and 3 months in prison to 9 years

in prison. The District Court then sentenced Adona to 9 years

in prison, within the Guidelines range.

2

The majority opinion acknowledges that Adona’s sentence

fell within the Guidelines range. In light of the plea agreement,

our task therefore should be easy: Dismiss Adona’s appeal. As

this Court has explained: “An appeal waiver serves the

important function of resolving a criminal case swiftly and

finally,” and we “ordinarily dismiss an appeal falling within the

scope of such a waiver.” United States v. Hunt, 843 F.3d 1022,

1027 (D.C. Cir. 2016).

But the majority opinion overrides the appeal waiver and

reaches the merits of Adona’s appeal. The majority opinion

says that the District Court mischaracterized the appeal waiver

during the plea colloquy. For that reason, the majority opinion

concludes that Adona’s appeal waiver was not “knowing,

intelligent, and voluntary.” In re Sealed Case, 702 F.3d 59, 63

(D.C. Cir. 2012).

What was the supposed mischaracterization?

The majority opinion says that the District Court told

Adona during the plea colloquy that Adona could appeal any

sentence based on “reasonableness.” But the District Court

never said that. The District Court stated: “Now, with regard

to certain circumstances, you may even have an opportunity,

the right to appeal the sentence of this court on the grounds of

reasonableness.” Docket No. 258 at 10 (Filed 6/18/15)

(emphasis added). The District Court’s statement was

accurate. The “certain circumstances” language indicated that

there were some circumstances in which Adona would be able

to appeal his sentence and some circumstances in which he

would not be able to appeal his sentence.

What were those “certain circumstances,” as relevant

here? The written plea agreement plainly stated that Adona

3

could appeal an above-Guidelines sentence, but could not

appeal a within-Guidelines or below-Guidelines sentence.

In short, there was no confusion or mischaracterization

during the plea hearing. Indeed, after the District Court’s

colloquy with Adona, the District Court then asked the defense

counsel to briefly describe the plea agreement’s terms. The

defense counsel stated correctly that Adona could appeal in a

certain circumstance: if the District Court imposed a sentence

above the Guidelines.

And I’ve advised Mr. Adona of what Your Honor said to

him in open court prior to this, that Your Honor – I don’t

know – I guess the best way to describe it would be that

Your Honor had not made up – made a final decision that

you would consider the advisory guidelines, but your

inclination was that that – the court would probably depart

upward and would state the reasons for that.

I’ve explained to Mr. Adona, and I think Your Honor just

went over briefly with him earlier, that under the plea

agreement he retains the right to appeal that decision and

– if Your Honor does do that. And as I said, I will be

advocating that you not do that. But you’ve advised Mr.

Adona of what your thoughts were on that issue.

Id. at 14 (emphasis added). The District Court then asked

Adona, “Does that sound consistent with your understanding”

of the plea agreement? Id. at 14-15. Adona answered, “Yes,

sir.” Id. at 15. A few minutes later, the District Court stated

again, “Now, you’ve heard your attorney’s description of the

plea agreement. That’s consistent with yours, right?” Id. at 19.

Adona replied, “Yes.” Id.

4

To reiterate, there was no confusion or mischaracterization

at the plea hearing.

Nor was there any confusion about the appeal waiver

during the subsequent proceedings in the case. For example,

the presentence report – which was prepared after the plea

hearing and before sentencing – succinctly explained the

appeal waiver: “The defendant may appeal an illegal sentence

or above-guideline sentence but may not raise other issues on

appeal.” J.A. 546. Adona never suggested to the District Court

that the presentence report’s description of the appeal waiver

was incorrect.

On this record, I find it untenable to claim that Adona and

his counsel were somehow operating under any confusion or

misunderstanding about the scope of the appeal waiver.

Enforcing the waiver as written would hardly be unfair.

Keep in mind that Adona received many benefits from his plea

deal. Adona was involved in a significant PCP distribution

operation in which the gang members terrorized Woodberry

Village residents and took over apartments in the neighborhood

in order to store and deal PCP. On top of that, Adona shot a

man named Karl Carrington in the back during a marijuana

transaction. Given his drug distribution activities and his

violent criminal activity, Adona received a reasonably good

plea deal here, at least as compared to many other similarly

situated defendants. In return, Adona gave up (among other

things) his right to appeal a within-Guidelines sentence, which

is what he ultimately received.

We should enforce the appeal waiver and dismiss Adona’s

appeal.

5

II

The majority opinion also vacates Keith Matthews’

sentence. I also find that decision confounding.

A

Matthews was a member of the Woodberry Village drug

distribution operation, and he ultimately was convicted of one

offense: unlawful possession of a firearm by a felon. The

advisory Guidelines range for Matthews spanned from 6 years

and 6 months in prison to 8 years and 1 month in prison. The

Government requested an above-Guidelines sentence of 10

years. Matthews requested a within-Guidelines sentence of 6

years and 6 months. The District Court varied upward from the

Guidelines range, but not as much as the Government had

requested. The District Court sentenced Matthews to a slightly

above-Guidelines sentence of 9 years in prison.

Seizing on the Guidelines range as if it were talismanic

(which it is not post-Booker), the majority opinion concludes

that the District Court committed procedural error by failing to

adequately explain Matthews’ above-Guidelines sentence. I

disagree.

We review sentences for procedural and substantive

reasonableness. For a sentence to be procedurally reasonable,

a district court must, among other things, explain the sentence.

For a sentence to be substantively reasonable, a district court

must impose a sentence that is not unreasonably short or long

given all of the facts and circumstances of the offense and

offender.

Under this Court’s precedents on procedural

reasonableness, a district court, in explaining an above-

6

Guidelines sentence, must also “state the specific reason why

the defendant’s conduct was more harmful or egregious than

the typical case represented by” the Guidelines range. United

States v. Brown, 808 F.3d 865, 866-67 (D.C. Cir. 2015)

(emphasis added); see also United States v. Akhigbe, 642 F.3d

1078, 1086 (D.C. Cir. 2011). A district court must supply

“individualized reasoning as to why” a sentence “above the

Guidelines range was appropriate for this particular

defendant.” Akhigbe, 642 F.3d at 1086.

Even putting aside whether Brown and Akhigbe over-

emphasized the Guidelines range in reviewing the procedural

adequacy of a district court’s sentencing explanation, the

District Court here fully met its procedural obligations,

including under those precedents. Matthews’ crime of

conviction was unlawful possession of a firearm as a felon. In

sentencing Matthews slightly above the advisory Guidelines

range, the District Court explained at length why it was

sentencing Matthews to 9 years in prison.

The District Court stated:

You’re engaged here in a drug operation, and you were

involved with, of course, others, Mr. Brown in particular,

involved in drug dealing. And you had a lot of weapons

on you. You were involved with a lot of weapons. And

there certainly was enough evidence for me to see that you

were involved in some related acts of violence involved

here. So the Court’s mindful of all of that.

And the Court’s mindful that it is very important to deter

you from engaging in any conduct of this kind in the

future.

....

7

Of course, the Court also wants to deter others. There were

young folks in that neighborhood, undoubtedly, who were

aware of what you were doing and other folks with you,

and maybe even looked to you or aspired to be like you.

And we want to deter them from engaging in conduct of

that kind, because that leads to more violence and more

drug sales in the community.

And, of course, the Court needs to protect the community

from that kind of conduct. We can’t have people out

selling drugs and running around with weapons, and,

especially, weapons that can go off and – whether

intentionally or accidentally, and hurt folks, whether they

be little kids in an apartment or whether they be police

officers trying to do their job across the street.

The Court also needs to promote respect for the law,

respect not only for you to have for the law but for others

to have for the law.

So for all of those reasons, a sentence at the high end of

the guideline range, in my judgment, is not sufficient in

this particular case for your sentence. Something more

than that has to be done in order to deter you and others,

protect the community, promote respect for the law, and,

of course, give you a fair and adequate punishment under

the circumstances.

So as a result of all of that, I’ve decided to vary upwards

to 108 months. It’s not the maximum but it’s not the very

top of the Guideline Range. And I’m doing it symbolically

to make a point, that it’s important that the people in the

community, that you and others see that this kind of

conduct has to stop, that you need to be deterred, they need

8

to be deterred, and that the community, of course, needs to

respect the law, and you need to respect the law.

J.A. 487-89.

From the District Court’s explanation and the record, we

can identify at least five reasons why the District Court

concluded that this was not an ordinary case and sentenced

Matthews to 9 years in prison.

First, the District Court referenced the other “acts of

violence” committed by Matthews. Id. at 488. Earlier in the

hearing, the Government presented the evidence of those other

acts of violence committed by Matthews: (i) firing “a firearm

he had on his person multiple times in the area near the police

to distract them”; (ii) firing a gun in Tiffany Williams’

apartment while her eight-year-old son was present; and (iii)

participating in the forcible takeover of Louis Clifton’s home

so that Matthews and the drug distribution operation could

better conceal and organize their activities. Docket No. 402 at

9 (Filed 3/17/16). The District Court found that those acts of

violence had been proved by a preponderance of the evidence.

The District Court also concluded that those other acts were not

the typical actions of an ordinary felon-in-possession defendant

in this Guidelines range.

Second, the District Court concluded that Matthews posed

a greater threat to public safety in his neighborhood than an

ordinary felon in possession. Matthews and his colleagues

used weapons to coerce neighbors into surrendering their

homes.

Third, the District Court determined that Matthews’

involvement in that neighborhood drug conspiracy made him

an especially bad role model for youth in the community. This

9

was not a case where the drug dealers kept to themselves at

home and bought and sold drugs at some other locale. This

gang took over Woodberry Village apartments and sold drugs

inside of Woodberry Village where children were present.

Therefore, the District Court was understandably concerned

about the impact of those illegal activities on the young people

in the community.

Fourth, the District Court stated that Matthews was

“involved with a lot of weapons,” not just the one weapon that

he was convicted of possessing. J.A. 488. The evidence

presented at trial amply supported that conclusion.

Specifically, Matthews complained in a text message that

police had confiscated several of his guns, and pictures

recovered from his cell phone showed Matthews with multiple

guns – illustrating why his nickname in the drug distribution

operation was “Bang.” Docket No. 402 at 14.

Fifth, the District Court stressed the importance of

promoting public respect for the rule of law, especially in a

community besieged by drugs and violence. Matthews did far

more than just possess a firearm, and the District Court thought

it important that the sentence reflect that reality.

Those combined considerations led the District Court to

conclude that “a sentence at the high end of the guideline

range” was “not sufficient.” J.A. 489.

This was not your typical felon-in-possession case within

this Guidelines range. The District Court thoroughly explained

that point when sentencing Matthews. In explaining the

sentence, the District Court readily satisfied its procedural

obligations under the sentencing precedents of the Supreme

Court and this Court.

10

B

What about substantive reasonableness? On appeal,

Matthews does not advance a substantive unreasonableness

argument. That was a sound decision on his part. It is

important to understand why that is so.

To begin with, we must keep in mind the critical

distinction between procedural and substantive review of

sentences. If a district court fails to explain why it imposed a

particular sentence, that is procedural error. If a district court

explains the sentence, but the district court’s explanation (or to

be precise, the facts and circumstances recounted in the district

court’s explanation) does not justify the length of the sentence,

that is substantive error.

The appellate standard of review in sentencing cases is

abuse of discretion. With respect to our substantive review,

that abuse-of-discretion standard is especially deferential after

Booker because there is no dispositive baseline or anchor to tell

us what a proper sentence is for any given case. How short is

too short? How long is too long? After Booker, the Guidelines

are not the baseline or anchor because “the Guidelines are now

advisory.” Gall v. United States, 552 U.S. 38, 46 (2007).

Therefore, the fact that the district court sentenced a defendant

below, within, or above the Guidelines does not in and of itself

suggest any unreasonableness in the sentence.

Take Gall as an example. The Supreme Court upheld a

sentence of probation even though the Guidelines range was

from 30 to 37 months of imprisonment. The Supreme Court

explained that affording too much weight to the Guidelines

range in the substantive review of sentences would create “an

impermissible presumption of unreasonableness for sentences

outside the Guidelines range” and “would not be consistent

11

with Booker.” Id. at 47. The Supreme Court added that courts

of appeals may not apply “a heightened standard of review to

sentences outside the Guidelines range.” Id. at 49.

In the wake of Booker and Gall, we have explained that

the “substantive reasonableness inquiry that we must conduct

on appeal boils down to the following question: In light of the

facts and circumstances of the offense and offender, is the

sentence so unreasonably high or unreasonably low as to

constitute an abuse of discretion by the district court?” United

States v. Gardellini, 545 F.3d 1089, 1093 (D.C. Cir. 2008).

Given that the substantive standard for sentencing in the

advisory Guidelines regime is not tied to the Guidelines, and

given that our appellate standard of review of a district court’s

sentence is the deferential abuse-of-discretion standard, it “will

be the unusual case when an appeals court can plausibly say

that a sentence is so unreasonably high or low as to constitute

an abuse of discretion by the district court.” Id.

Turning back to this case, it is not plausible to say that the

9-year sentence for Matthews is substantively unreasonable

given the facts and circumstances of the offense and offender

described above. That no doubt is why Matthews himself does

not advance such an argument.

C

Having said all of that, I can identify three concerns one

might have about the sentence in this case. But all three

concerns are policy-based and, under the relevant Supreme

Court precedents, do not qualify as legal grounds for vacating

the sentence.

First, one may think that the top of the Guidelines range

should represent the upper limit for a sentence, at least absent

12

extraordinary circumstances. But the problem with that

position comes back to Booker and Gall. Under those cases, a

district court does not need some special justification to impose

an above-Guidelines sentence (or a below-Guidelines sentence,

for that matter). Put another way, the special justifications

needed for departures under the old mandatory Guidelines

regime are not needed for variances under the current advisory

Guidelines regime. The Supreme Court has emphasized that

“the Guidelines are now advisory.” Gall, 552 U.S. at 46

(emphasis added). Advisory means advisory.

Second, one may be concerned about the District Court’s

reliance on acquitted conduct when sentencing Matthews. Cf.

United States v. Bell, 808 F.3d 926, 927-28 (D.C. Cir. 2015)

(Kavanaugh, J., concurring in denial of rehearing en banc); id.

at 928-32 (Millett, J., concurring in denial of rehearing en

banc). Matthews was acquitted on all counts except for the one

felon-in-possession charge, but he was then sentenced in

essence as if he had been convicted on all of the counts.

Defendants are understandably unhappy (to say the least) when

that occurs. But that result is the not-uncommon byproduct of

our current federal sentencing regime in which the jury

assesses guilt under a reasonable doubt standard, while the

district court then may find sentencing facts under a lesser

preponderance of the evidence standard. See United States v.

Settles, 530 F.3d 920, 923 (D.C. Cir. 2008).

In that bifurcated system, a district court may find that the

defendant engaged in certain conduct even though the jury

acquitted the defendant of engaging in that same conduct. If

that system seems unsound – and there are good reasons to be

concerned about the use of acquitted conduct at sentencing,

both as a matter of appearance and as a matter of fairness –

Congress and the Supreme Court may fix it, as may individual

district judges in individual cases. See id. at 924; see also Bell,

13

808 F.3d at 927-28 (Kavanaugh, J., concurring in denial of

rehearing en banc); United States v. Henry, 472 F.3d 910, 918-

22 (D.C. Cir. 2007) (Kavanaugh, J., concurring). But under

current law, the district court may base the sentence in part on

facts found at the sentencing hearing by a preponderance of the

evidence.

Third, one may think that Matthews’ 9-year sentence is

simply too long given the facts in this case as found and

recounted by the District Court. But the problem with reaching

such a conclusion is our deferential substantive standard of

review: abuse of discretion. In light of that deference, it is not

remotely plausible to say that the 9-year sentence in this case

is too long. See Gall, 552 U.S. at 47. Indeed, even Matthews

does not argue as much.

In short, those three policy-based concerns supply no legal

justification for vacating the sentence.

D

Because the District Court fully explained the sentence,

thus satisfying its procedural obligations, and because the 9-

year sentence was substantively reasonable, Matthews’ case

should be an easy affirmance.

Why, then, does the majority opinion vacate Matthews’

sentence?

The majority opinion says that the District Court

committed procedural error by not adequately explaining

Matthews’ sentence. That conclusion is not tenable, in my

view. As described above, the District Court fully explained

its decision and met its procedural obligations.

14

The majority opinion apparently is not persuaded by the

District Court’s explanation. But the persuasiveness of the

District Court’s explanation is not a procedural issue. It is a

substantive issue – and therefore is not a proper basis for

vacating the sentence in this case, where Matthews did not (and

could not plausibly) raise a substantive unreasonableness

argument.

In any event, because the majority opinion nominally

classifies this case as one of procedural error, and does not

claim that the above-Guidelines 9-year sentence was

substantively unreasonable under the facts and circumstances

here, the District Court on remand may simply re-impose the

same 9-year sentence. All the District Court needs to say is

that it believes, as a policy matter, that the Guidelines range is

too low for Matthews’ offense. See Kimbrough v. United

States, 552 U.S. 85, 101-02, 109 (2007). Or in the alternative,

the District Court can further explain (really, re-explain) why

the facts and circumstances of Matthews’ offense justify a 9-

year sentence. Unless and until this Court says that a 9-year

sentence for Matthews is substantively unreasonable, the

District Court need not change its prior sentence.

***

We should dismiss Adona’s appeal and affirm Matthews’

sentence. I respectfully dissent on those two issues.