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
BEAM, Circuit Judge,
dissenting.
Because I agree with the government that the district court failed to adequately explain the 240-month deviation, and because the resulting 120-month sentence is substantively unreasonable, I respectfully dissent.
First, I agree with the court that whether we are reviewing sentences within or without the Guidelines range, we apply a deferential abuse-of-discretion standard, ensuring first that no procedural error occurred and if none, considering the substantive reasonableness of the sentence. Ante at 461; Gall v. United States, 552 U.S. 38 , 128 S.Ct. 586, 591, 597 , 169 L.Ed.2d 445 (2007). I therefore concur in that portion of the court’s opinion. And, I fully acknowledge that under the “deferential abuse-of-discretion” standard, appel *471 late review of federal sentences is greatly curtailed, harkening back to pre-Guidelines days of federal sentencing. 14 I also believe, as I always have, that there is good reason for giving sentencing judges great latitude. 15 Yet, notwithstanding the prudence exhibited in giving district courts such deserved deference, there remains review nonetheless — an element seemingly lost in the court’s instant analysis. The practical result of this court’s affirmance of Feemster’s sentence establishes, effectively, a standard of no appellate review at all. We adopt a posture today that is so deferential that, so long as the district court gives lip service and a bit of discussion to the relevant 18 U.S.C. § 3553 (a) factors, a sentence will almost never be reversed, procedurally or otherwise. This approach is not supported by Supreme Court precedent.
I agree with Judge Riley that the district court committed significant procedural error by substantially basing Feemster’s unusually lenient sentence on three irrelevant and insignificant factors — youth, absence of weapon, and successful completion of probation. The repeated and redundant use of these factors does not adequately explain nor support the great variance in this case. And, I do not so willingly credit the government’s “concessions” (which is a misnomer, as I see it, for the government’s mere articulation of its argument) as a barrier to reversal in this case.
Gall’s directives leave no doubt that “meaningful appellate review” remains intact. 128 S.Ct. at 597 . When the Supreme Court instructed appellate courts to review for procedural and substantive reasonableness, I believe it meant what it said. Not only did the district court fail to support Feemster’s sentence with any significant justification, but also this court’s opinion lacks any meaningful discussion of the circumstances under which a court of appeals may actually reverse a district court’s sentence. What would constitute an abuse of discretion if this case does not?
If Feemster is a case for affirmance, then surely there is no reversal on the appellate horizon in this circuit. Feemster’s litany of juvenile and adult convictions, see United States v. Feemster, 483 F.3d 583, 585-86 (8th Cir.2007), include two qualifying crimes of violence flatly overshadowing his age — the factor that was clearly the district court’s primary justification and concern at sentencing. Further, the district court’s articulation that Feemster “successfully completed ... probation” as justification for this huge deviation is both disingenuous and counter-factual. That this court accepts such a justification is difficult to understand. We ignore Feemster’s sixty-five separate conduct violations received during his prior imprisonment, two conditional release revocations, and at least one probation that was certainly violated. And, I might add, that considering the existence of an unsupervised probation as “successful completion” when there is no clear indication *472 either way, is a stretch. Notwithstanding the government’s failure to clarify the confusion regarding the completion, or not, of the unsupervised term of probation, this court is obligated under existing precedent to review the record on its own. As I see it, this probation was almost certainly not “successfully completed” such as to support such a deviation. The district court, however, framed its justification in such a way as to receive a free pass on appeal.
Even though the district court bolstered its justification for the departure by mentioning Feemster’s “record” and “violent felony convictions,” repeated use of Feemster’s age remained the obvious driving force behind the fashioning of this sentence. We should not allow such circumlocution to guide our appellate review. By giving this sort of action free rein without meaningful review, sentencing courts that mention a few words based upon § 3553(a) requirements have obtained a license for capriciousness. Merely acknowledging a consideration of § 3553(a) factors is not enough. Ante at 463-64. The court does not seriously attempt to analyze the district court’s reasoning and in the end, does not adequately address how the district court’s three justifications “sufficiently” support the resulting 240-month deviation. Gall, 128 S.Ct. at 594 . While vaguely plausible, but barely, these justifications do not provide the convincing explanation needed to support the deviation made here. Review for abuse of discretion must be more than a review of thin recitations already meaningfully considered in Guideline calculations.
At bottom, I am left with a “definite and firm conviction” that this sentence is outside the realm of reasonableness dictated by the facts of the case. United States v. Autery, 555 F.3d 864, 879 (9th Cir.2009) (Tashima, J., dissenting); United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.2008). A more serious level of review supports reversal in this case. I dissent.
. Without substantive change in the governing statutes and the Guidelines, our current review is a 180-degree turnaround from our days of near micro-management. United States v. Robinson, 454 F.3d 839 (8th Cir. 2006); United States v. Saenz, 428 F.3d 1159 (8th Cir.2005). And, I believe we have now gone too far.
. I firmly believe, based upon almost five years of experience as a federal trial judge and the sentencing, pre-Guidelines, of at least 500 federal felons, that the "disparity principle," advanced by advocates as the foundation and bedrock underlying federal guideline sentencing, is an illusion, by at least half. Virtually every individual presents a different picture to a careful and conscientious sentencing judge. As a result, alleged uniformity is often disparity, viewed through a different prism.