explaining “we ‘may consider the extent of the deviation,’ ” but “may not require ‘ “extraordinary” circumstances to justify a sentence outside the Guidelines’ and are prohibited from ‘the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence’ ” (quoting Gall, 552 U.S. at 47, 51, 128 S.Ct. 586)
How later courts described this case
- explaining “we ‘may consider the extent of the deviation,’ ” but “may not require ‘ “extraordinary” circumstances to justify a sentence outside the Guidelines’ and are prohibited from ‘the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence’ ” (quoting Gall, 552 U.S. at 47, 51, 128 S.Ct. 586)
- holding that the district court abuses its discretion only when it “(1) fails to consider a relevant factor that should have received significant weight; (2) gives significant weight to an improper or irrelevant factor; or (3) considers only the appropriate factors but in weighing those factors commits a clear error of judgment” (citation omitted)
- explaining that sentences, whether inside or outside the Guidelines range, are reviewed under a deferential abuse-of-discretion standard, and that this review includes ensuring that the district court committed no significant procedural error, and then considering the substantive reasonableness of the sentence under the totality of circumstances
- explaining that this Court, in reviewing a sentence on appeal, first ensures that no significant procedural error occurred and then considers the substantive reasonableness of the sentence under an abuse-of-discretion standard; if the sentence is within the Guidelines range, we may apply a presumption of reasonableness
Written by the judges who cited it.
The opinion
RILEY, Circuit Judge,
concurring.
Before reaching the issue of substantive reasonableness, we “must first ensure the district court committed no significant procedural error.” Gall v. United States, 552 U.S. 38 , 128 S.Ct. 586, 597 , 169 L.Ed.2d 445 (2007). If not for the government’s abandonment of its position that the district court gave significant weight to improper and irrelevant factors in fashioning Feemster’s sentence, I would conclude the district court committed significant procedural error.
The majority’s opinion leaves intact this court’s precedent that an abuse of discretion occurs when a district court “gives significant weight to an improper or irrelevant factor.” See Majority Opinion at 461 (quoting United States v. Kane, 552 F.3d 748, 752 (8th Cir.2009)). See also United States v. Haack, 403 F.3d 997, 1004 (8th Cir.2005). “Relevant” is defined as “[[logically connected and tending to prove or disprove a matter in issue; having appreciable probative value — that is, rationally tending to persuade people of the probability or possibility of some alleged fact.” Black’s Law Dictionary 1316 (8th ed.2004). The Rules of Evidence define relevancy as the “tendency to make the existence of any fact that is of consequence ... more probable or less probable.” Fed.R.Evid. 401. In explaining its reasons for the dramatic downward variance in Feemster’s ease, the district court gave significant weight to three factors: (1) Feemster’s age at the time of the instant offense and sentencing, (2) the fact Feemster did not carry a weapon when he committed his crimes, and (3) Feemster’s successful completion of two terms of probation. These three factors had no appreciable probative value and *465 were not of any particular consequence to Feemster’s sentencing and specifically to the district court’s substantial variance, that is, they were not relevant.
In the panel opinion, we reasoned the district court’s basing the downward variance substantially on Feemster’s age at the time of the instant offense (26) and sentencing (27) 6 was an abuse of discretion because:
The Guidelines provide, “[a]ge (including youth) is not ordinarily relevant in determining whether a departure is warranted.” U.S.S.G. § 5H1.1, p.s. As we noted in [United States v. Feemster, 483 F.3d 583 (8th Cir.2007) (Feemster II) ], “[although the Guidelines are no longer mandatory, the Guidelines policy statements still must be taken into account in fashioning a reasonable sentence.” Feemster II, 483 F.3d at 590 (citing 18 U.S.C. § 3553 (a)(5)). A variance resulting in an “unusually lenient” sentence should not be based largely on the twenty-something age of the defendant, because relative youth is a factor that applies to many defendants and it is unlikely district courts will uniformly adopt the view that defendants in their mid-twenties deserve more lenient sentences than middle-aged or older defendants. See id. (citing United States v. Plaza, 471 F.3d 876, 879 (8th Cir.2006) (quoting United States v. Maloney, 466 F.3d 663, 669 (8th Cir.2006))).
United States v. Feemster, 531 F.3d 615, 619-20 (8th Cir.2008), reh’g granted, vacated (8th Cir. Oct. 1, 2008) (Feemster III).
The government now concedes Feemster’s age is part of his “history and characteristics” under 18 U.S.C. § 3553 (a)(1), and, therefore, the district court properly considered Feemster’s twenty-something age in fashioning Feemster’s sentence. However, the fact Feemster’s age is part of his “history and characteristics” does not necessarily mean Feemster’s age is a “characteristic” that is relevant for sentencing purposes and potentially to support a significant variance. Feemster’s age does not distinguish him in any meaningful way from other defendants. In fact, 34.1 % of all males arrested in the United States in 2007 were between the ages of 20 and 29. 7 In 2007, even more narrowly, males between the ages of 25 and 29 made up the largest demographic group — an estimated 17.24% — of all state and federal prisoners in the United States. 8 Feemster’s age as a “characteristic[ ] of the defendant” no more provides a basis for a downward variance than other irrelevant sentencing characteristics such as Feemster’s height (5' 9"), weight (175 lbs), eye color (brown), or hair color (black). As explained in the panel opinion, “[a] dramatic downward variance for Feemster based on his relative youth (26 or 27) is inappropriate because it manifestly would result in unwarranted sentencing disparities among similarly situated defendants.” Feemster III, 531 F.3d at 620 . Feemster’s *466 age has no significant or “appreciable probative value” in this sentencing and is irrelevant, absent the government’s concession.
On rehearing the government acknowledges the district court did not commit procedural error by considering the absence of a weapon in the instant offense, or the fact Feemster’s co-defendant carried a weapon during a prior robbery while Feemster did not. The government now concedes the district court properly considered the absence of a weapon as part of the “nature and circumstances of the offense” under 18 U.S.C. § 3553 (a)(1). However, the fact Feemster did not carry a weapon during the instant offense is not a “circumstance[ ] of the offense” that is relevant to whether a downward variance is warranted. Otherwise all other nonexistent crimes and facts should be considered as “circumstances of the offense” too; for example, Feemster did not also possess or distribute methamphetamine or ecstasy, or commit murder, rape, mail fraud, tax evasion, kidnaping, burglary, or a host of other crimes during the commission of the instant offense. Feemster could have committed the instant offense in countless more egregious ways. To the extent the various crimes Feemster did not commit were “[ljogically connected and tending to prove or disprove a matter in issue” related to Feemster’s sentence, the absence of these crimes were all taken into account in calculating Feemster’s Guidelines range. Neither Gall nor the majority opinion “overrule^] our circuit precedent ... that ‘[t]he absence of grounds that justify further punishment is not a ground for a downward variance.’ ” 9 Feemster III, 531 F.3d at 620 (citing Feemster II, 483 F.3d at 589 ).
Finally, but for the government’s concession, I would conclude Feemster’s completion of two terms of probation, on balance, was not a significantly relevant consideration or a proper ground for a downward variance in this case when compared to Feemster’s history of repeated probation and conditional release revocations, and numerous citations for prison conduct violations. 10 See Feemster II, 483 F.3d at 589 (“Successfully completing a term of probation is similar to obeying the law or complying with a court order in that defendants are expected to obey the law, to comply with court orders, and to complete terms of probation successfully. The reward for doing so is the avoidance of further punishment.”) (citations omitted).
In my view, the district court committed significant procedural error by substantially basing Feemster’s unusually lenient sentence on these three irrelevant and insignificant factors. However, accepting the government’s concession that all of the justifications given by the district court for Feemster’s sentence were relevant and proper sentencing considerations, I am left *467 to agree with the majority’s conclusion that the district court adequately explained the chosen sentence. In light of the deferential standard announced in Gall , combined with the government’s concessions and the majority’s view, I also agree with the majority’s conclusion Feemster’s sentence was not substantively unreasonable.
. The majority notes the district court considered the fact Feemster’s criminal career began at age 17, see Majority Opinion at 463-64, but does not mention the district court substantially based the variance on Feemster’s age at the time of the instant offense and sentencing. See United States v. Feemster, 531 F.3d 615, 618 (8th Cir.2008), reh'g granted, vacated (8th Cir. Oct. 1, 2008).
. United States Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, Table 39— Crime in the United States 2007, http://www. fbi.gov/ucr/cius2007/data/table_3 9 .html.
. University of Albany, Sourcebook of Criminal Justice Statistics Online, Table 6.33.2007, http://www.albany.edU/sourcebook/pdf/t 6332007.pdf.
. The district court also made a clearly erroneous determination, thereby committing procedural error, when it determined Feemster deserved a downward variance because Feemster's co-defendant possessed the weapon during a prior robbery rather than Feemsler. See Feemster II, 483 F.3d at 589 n. 5 (“Co-conspirators are responsible for all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.”) (quotation omitted); see also Gall, 128 S.Ct. at 597 (explaining it is procedural error to "select! ] a sentence based on clearly erroneous facts”).
. Further, the record is not clear Feemster successfully completed his one-year term of probation for his fourth conviction, which was counted by the district court as a successful completion. The probation term began February 9, 2004, and Feemster was later charged with distributing crack cocaine in March 2004 and was found guilty of that March offense in December 2004.