# United States v. Carty > Court of Appeals for the Ninth Circuit · March 24, 2008 · 520 F.3d 984 URL: https://www.frixlaw.com/law-library/cases/9560003 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Alphonso Kinzar CARTY, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Juan Antonio Zavala, Defendant-Appellant - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** March 24, 2008 - **Citations:** 520 F.3d 984; 2008 U.S. App. LEXIS 6084; 2008 WL 763770 - **Precedential status:** Published - **Opinion:** Concurrence by Silverman - **Judges:** Kozinski, Schroeder, Reinhardt, Rymer, Kleinfeld, Thomas, Silverman, McKeown, Wardlaw, Gould, Paez, Berzon, Tallman, Bybee, Bea - **Cited by:** 2,402 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/9560003 ## How later opinions describe it (automated extraction) - holding that “only a procedurally erroneous or substantively unreasonable sentence will be set aside” and that in approaching a sentencing proceeding the district court must first determine the properly calculated Guidelines range, give the parties an opportunity to present ar… - recognizing that “[w]hat constitutes a sufficient explanation will necessarily vary depending upon the complexity of the particular case, whether the sentence chosen is inside or outside the Guidelines, 3 and the strength and seriousness of the proffered reasons for imposing a… - finding that the district court was not required to provide more than a simple explanation for imposing a sentence within the Guidelines even though the defendant requested a departure based on his lack of criminal history, available alternatives, and “his sons’ need for [] a … - explaining that “[o]n appeal, we first consider whether the district court committed significant procedural error,” e.g., “fail[ure] to calculate—or to calculate incorrectly—the Guidelines range,” before “consider[ing] the substantive reasonableness of the sentence” - holding that "[i]t would be procedural error for a district court to fail to . . . consider the § 3553(a) factors . . . or to fail adequately to explain the sentence selected, including any deviation from the Guidelines range" ## Opinion text SILVERMAN, Circuit Judge, concurring: In Gall v. United States, — U.S. -, 128 S.Ct. 586, 597 , 169 L.Ed.2d 445 (2007), the Supreme Court said, “When conducting [appellate review of the reasonableness of a sentence,] the court will, of course, take into account the extent of any variance from the Guidelines. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness, [citing Rita v. United States, 127 S.Ct. 2456 ].” Despite this very plain statement that appellate courts may exercise case-by-case discretion about whether to apply a presumption of reasonableness when reviewing a Guidelines sentence, the majority adopts its own rule — “[W]e decline to adopt such a presumption in this circuit”— not just in this case, but in all cases in this circuit. I fail to see by what right the majority presumes to prohibit the discre *997 tionary application of a presumption of reasonableness in all cases, in light of the fact that the Supreme Court has specifically authorized it. With all due respect, it does not matter that the majority thinks that a presumption of reasonableness on appeal carries too much “baggage,” as they put it. What matters is what the Supreme Court thinks, and the Supreme Court thinks that “the appellate court may, but is not required to, apply a presumption of reasonableness.” Gall, 128 S.Ct at 597 . (Emphasis added.) Is that not clear enough? Perhaps the majority reads the language from Gall to invite each circuit to conjure up its own circuit-wide rule, instead of as a mandate for case-by-case appellate discretion. If so, I respectfully submit that this is a fanciful interpretation of the Court’s opinion. The Supreme Court is in the business of resolving circuit splits, not inviting them. Indeed, the Court explicitly stated in Gall that it is concerned with achieving “nationwide consistency” when it comes to federal sentencing. Id. at 596 . Furthermore, the language and structure of the Gall opinion itself show that the Supreme Court was providing a step-by-step approach to how a given sentence is to be reviewed on appeal: First, applying an abuse of discretion standard, the appellate court must ensure that no significant procedural error occurred, such as a miscalculation of the Guidelines. Id. at 597 . Next, the court is to consider the substantive reasonableness of the sentence. In doing so, the court is to take into account the totality of the circumstances and the extent of any variance from the Guidelines. Id. Then, the Court said, “[i]f the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness.” Id. Finally, if the sentence is outside the Guidelines range, the court may not apply a presumption of unreasonableness. Id. In context, it is thus apparent that the Court was explaining exactly how an appellate panel should approach the review of any given sentence, and not inviting each circuit to adopt its own circuit-wide policy on the presumption of reasonableness. And the Court’s approach makes perfect sense. In a routine case, involving simple facts and no serious argument against the correctness of the Guidelines sentence, the reviewing court may choose to apply a presumption of reasonableness. On the other hand, in a complex case with unusual facts or many variables, the reviewing court may find that a presumption of reasonableness is not appropriate. This, it seems to me, is what the Supreme Court envisioned when it said, “If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness.” Turning to the cases at hand, I would apply the presumption of reasonableness to the sentences under review and, finding no abuse of discretion on the part of the district courts, would affirm. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9560003. Public record. Not legal advice.