# United States v. Bernard Chester Webb

> Court of Appeals for the Sixth Circuit · April 6, 2005 · 403 F.3d 373

URL: https://www.frixlaw.com/law-library/cases/9497889

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Bernard Chester WEBB, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** April 6, 2005
- **Citations:** 403 F.3d 373; 2005 U.S. App. LEXIS 5420; 2005 WL 763367
- **Precedential status:** Published
- **Opinion:** Concurring in part by Kennedy
- **Judges:** Kennedy, Martin, Moore
- **Cited by:** 616 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9497889

## How later opinions describe it (automated extraction)

- finding that, where the district court sentenced a defendant pursuant to a plea agreement, within the Guidelines range, and following consideration of an upward departure, “clear and specific evidence ... indicates that the district court would not have sentenced the defendant…
- holding that “we may conclude that a sentence is unreasonable when the district judge fails to ‘consider’ the applicable guidelines range or neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate *…
- holding that treatment of Guidelines as mandatory was not plain error where “the record contains clear and specific evidence that the district court would not have sentenced [the defendant] to a lower sentence under an advisory Guidelines regime”
- stating that we may find a district court sentence to be unreasonable if the district judge fails to consider the applicable Guidelines range or neglects to consider the other § 3553(a) factors
- noting that “before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, [ ](3) that affectfs] substantial rights,” and an “appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the err…

## Opinion text

KENNEDY, Circuit Judge,
concurring in part and dissenting in part.
I concur in the panel’s opinion with the exception of footnote nine. We are not called upon to decide whether sentences within the Guidelines are per-se reasonable to affirm the sentence in this case. On that ground alone, I would decline to address the issue raised in the footnote. Because the majority addresses the issue, however, I feel compelled to address it as well.
*386 First, I question whether a sentence within the Guidelines’ range can ever be anything other than reasonable in light of the Sentencing Commission’s eongressionally mandated mission to develop appropriate sentences based on all factors related to the conviction. 28 U.S.C. §§ 991 (b), 994. As I understand the Commission’s approach to establishing Guidelines, it initially considered the sentences imposed by district courts throughout the United States for particular crimes, the factors that judges had considered in imposing those sentences, as well as its congressional mandate, and then sought to set the Guidelines accordingly. It selected factors such as amounts of drugs, amounts of money or losses, etc. While other approaches or amounts may be reasonable as well, it is hard to conclude that the amounts or factors the Commission selected were not reasonable.
Nor, do I agree with the last sentence of footnote nine, which indicates that holding all sentences within the Guidelines’ range per-se reasonable would effectively make the Guidelines mandatory. If this court were to hold that a sentence within the Guidelines’ range is per-se reasonable, it does not follow that a sentence outside the Guidelines’ range is per-se unreasonable, a necessary prerequisite to making the Guidelines effectively mandatory. Hypothetically, a sentence within the Guidelines’ range could be just as reasonable as a sentence outside the Guidelines’ range. Thus, even if this court were to hold that a sentence within the Guidelines’ range is per-se reasonable, the voluntariness of the Guidelines would still be maintained provided that the court did not also hold that sentences outside the Guidelines’ range are per-se unreasonable.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9497889. Public record. Not legal advice.