holding that plain-error review applied to appellant’s procedural reasonableness argument where defendant answered “No” to district court’s Bostic question at sentencing, and explaining that although “this answer did not undermine Vonner’s right to appeal issues he had ‘previously raised,’ it did undermine his right to challenge the adequacy of the' court’s explanation for the sentence — an issue that became apparent as soon as the court finished announcing its proposed sentence and that counsel nonetheless declined the court’s invitation to address”
How later courts described this case
- holding that plain-error review applied to appellant’s procedural reasonableness argument where defendant answered “No” to district court’s Bostic question at sentencing, and explaining that although “this answer did not undermine Vonner’s right to appeal issues he had ‘previously raised,’ it did undermine his right to challenge the adequacy of the' court’s explanation for the sentence — an issue that became apparent as soon as the court finished announcing its proposed sentence and that counsel nonetheless declined the court’s invitation to address”
- finding No. 21-5471 United States v. Nicholas Nunley Page 11 no plain error where the district court’s explanation, which “[n]o one would call . . . ideal,” stated that it had considered the Guidelines range and the 18 U.S.C. § 3553 (a) factors, but “did not specifically address all of Vonner’s arguments for leniency”
- holding that the bankruptcy court abused its discretion in failing to find excusable neglect, notwithstanding that “excusable neglect” is “an equitable [determination], taking account of all relevant circumstances surrounding the party’s omission,” where the debtor’s notices to layperson claimants were confusing
- concluding that the district court had not committed plain error when his explanation stated that he “had ‘considered the nature and circumstances of the offense, the history and characteristics of the defendant, and the advisory Guidelines range, as well as the other factors listed in 18 [U.S.C. § ] 3553(a)’ ”
Written by the judges who cited it.
The opinion
BOYCE F. MARTIN, JR., Circuit Judge,
dissenting,
in which Judges COLE and CLAY join.
Having joined Judge Clay’s and Judge Moore’s dissents, I write briefly in an attempt to outline the proper procedure for sentencing so that district courts need not continue to stumble blindly in the dark after the Supreme Court’s recent decisions have failed to light the way. See Richard G. Kopf, The Top Ten Things I Learned From Apprendi, Blakely, Booker, Rita, Kimbrough, and Gall, OSJCL Amici: Views FROM the Field (January 2008), at http:// osjcl.blogspot.com.
I.
I will not rehash the obvious mistake the majority is making in applying plain-error review to Vonner’s procedural challenges; I believe my colleagues have adequately addressed the foolhardiness of the majority’s approach in that regard. Rather, I want to focus on the need for district courts to adequately explain the reasons for a given sentence, taking into account all of the § 3553(a) factors, regardless of whether the sentence is above, below, or within the proposed guidelines range, so that we, as an appellate court, may adequately review sentences under the stan *393 dards identified by the Supreme Court in Gall v. United States, — U.S. -, 128 S.Ct. 586, 597 , 169 L.Ed.2d 445 (2007).
The district court attempted to justify Vonner’s within-guidelines sentence by merely stating that it had “considered the nature and circumstances of the offense, the history and characteristics of the defendant, and the advisory Guidelines range, as well as the other factors listed in 18 [U.S.C. § ] 3553(a).” The majority concedes that this explanation is not ideal, and that it “failed to ensure that the defendant, the public and, if necessary, the court of appeals understood why the trial court picked the sentence it did.” United States v. Vonner, 516 F.3d at 386 (6th Cir.2008). One could assume, although I would not suggest it in this Circuit, that if the majority was not mistakenly applying plain error review, the district court’s failure to adequately explain Vonner’s sentence would warrant reversal. In fact, I believe the Supreme Court’s decision in Gall would mandate reversal.
II.
The Supreme Court has recently laid out the proper manner in which a district court should sentence a defendant. Gall, 128 S.Ct. at 596-97 . Proeedurally, the district court must properly calculate the guidelines range, id. at 596 , give “both parties the opportunity to argue for whatever sentence they deem appropriate,” id., and consider “all of the § 3553(a) factors to determine whether they support the sentence requested by the parties,” id.
A district court must then “make an individualized assessment based on the facts presented,” id. at 596-97, regardless of whether the sentence is above, below, or within the guidelines, id. As my colleague Judge Clay recently put it, “[djuring this ‘individualized assessment’ process, sentencing judges should not permit the Guidelines to be a strait-jacket which compel a particular sentence.... ” United States v. Sedore, 512 F.3d 819, 828 (6th Cir.2008) (Clay, J., concurring). Rather, as has always been the case under § 3553(a), the guidelines should be an “initial benchmark” or “starting point”, Gall, 128 S.Ct. at 597 , to help the district court craft “a sentence sufficient, but not greater than necessary, to comply with the purposes of sentencing described in the second factor of § 3553(a),” id. at 597 n. 6. It must be re-emphasized that after Gall , the calculation and analysis of the correct guidelines range is merely one of the several factors to be considered, id., see also 18 U.S.C. § 3553 (a), and is not controlling or determinative of the sentence given.
Finally, after deciding on a sentence, a district court is required “to adequately explain the chosen sentence,” id, at 597, “[rjegardless of whether the sentence imposed is inside or outside the Guidelines range .... ” id. The difficult part in attempting to apply this requirement is deciphering the meaning of “adequately explain.” How much justification for a sentence is “adequate”? I believe it is obvious that the explanation given for Vonner’s sentence was sorely lacking and would not pass muster under Gall . But at what point does an explanation transform from inadequate to adequate? The standard set by the district judge in Gall must be our guide, as it is the only example we have that has been affirmed by the Supreme Court as adequate.
In sentencing Gall, the district court provided a lengthy statement on the record and provided a written memorandum discussing the reasons for Gall’s sentence. Id. at 593 . While I understand that submitting both an oral statement on the record and a written memorandum are not necessary, I also believe that the content *394 of the Gall district court’s statement is a prime example of what is necessary:
“The Court determined that, considering all the factors under 18 U.S.C. 3553(a), the Defendant’s explicit withdrawal from the conspiracy almost four years before the filing of the Indictment, the Defendant’s post-offense conduct, especially obtaining a college degree and the start of his own successful business, the support of family and friends, lack of criminal history, and his age at the time of the offense conduct, all warrant the sentence imposed, which was sufficient, but not greater than necessary to serve the purposes of sentencing....
[Gall] will have to comply with strict reporting conditions along with a three-year regime of alcohol and drug testing. He will not be able to change or make decisions about significant circumstances in his life, such as where to live or work, which are prized liberty interests, without first seeking authorization from his Probation Officer or, perhaps, even the Court. Of course, the Defendant always faces the harsh consequences that await if he violates the conditions of his probationary term....
Any term of imprisonment in this case would be counter effective by depriving society of the contributions of the Defendant who, the Court has found, understands the consequences of his criminal conduct and is doing everything in his power to forge a new life. The Defendant’s post-offense conduct indicates neither that he will return to criminal behavior nor that the Defendant is a danger to society. In fact, the Defendant’s post-offense conduct was not motivated by a desire to please the Court or any other governmental agency, but was the pre-indictment product of the Defendant’s own desire to lead a better life.”
Id. (quoting the text of the district court’s sentencing memorandum).
As the Supreme Court found, the district court addressed the relevant § 3553(a) factors and Gall’s arguments in mitigation; but more important than that, the district court applied the facts of Gall’s case to those factors, rather than simply reciting the text of § 3553(a) for the record. In so doing, the district court was not bound by what my colleague Judge Merritt refers to as “guidelinitis,” defined as “the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone.” Sedore, 512 F.3d at 829 (Merritt, J., dissenting). Instead, the Gall district court treated the guidelines as they should be treated, as just one of the relevant § 3553(a) factors to be considered. See Gall, 128 S.Ct. at 596 (“The Guidelines are not the only consideration, ... the district judge should [ ] consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party.”).
The procedures of the Gall district court are a model of clarity. As upheld by the Supreme Court, it provides clear direction to district courts as to the proper manner by which to sentence defendants. Obviously, the Vonner district court gave mere lip service to the mandates of § 3553(a) and the Supreme Court’s opinion in Booker establishing the guidelines as merely advisory. United States v. Booker, 543 U.S. 220, 245 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). Vonner was denied what the Supreme Court has now held was his right to have his sentence adequately explained so that he could seek meaningful review. See Gall, 128 S.Ct. at 597 . But, as is not unusual in this Circuit, the majority has sidestepped the true issue on appeal and applied an overly burdensome standard of review that no defendant will ever be able to be meet. So, in the interest of clarify *395 ing the murky waters of sentencing decisions passed down by this Court, let me be clear: a district court, just as the Gall district court did, must “set forth enough [explanation] to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision-making authority,” Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2468 , 168 L.Ed.2d 203 , regardless of whether the sentence is above, below, or within the guidelines.
III.
Some eighteen years has passed since my first decision involving the guidelines, and it appears that we are about to come full circle.
At the time I wrote United States v. Perez, 871 F.2d 45 (6th Cir.1989), ... I firmly believed that the guidelines could elevate the federal criminal justice system to a new level. I even supported Judge Stephen Breyer’s argument, which he made in the Hofstra Law Review, that many compromises were made in the implementation of the sentencing guidelines, but that a better system would emerge. See Stephen Breyer, The Federal Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 405 (1988). I now believe I was wrong in endorsing the guidelines. The guidelines, as ambitious as they were, have become more than just guidelines; they are rigid mandates. I still believe that sentencing throughout the federal system should be as uniform as possible. However, the guidelines disregard fundamental notions of due process and create a slip-shod system of sentencing in which the only thing that matters is the maximization of prison sentences. ‘The best we can say about [the sentencing guidelines] is what Herbert Hoover said of Prohibition: that this has been a ‘great ... experiment, noble in motive [and] far-reaching in purpose.’ But like that earlier experiment, this one has failed.’ Jose A. Cabranes, A Failed Utopian Experiment, Nat. L. J., July 27, 1992, at 17, 18 (U.S. District Judge Cabranes based the article on a speech he delivered at the University of Chicago). As with any failed experiment, it is now time that we rid ourselves of the experiment and move on to a new, improved system.
United States v. Silverman, 976 F.2d 1502, 1534-35 (6th Cir.1992) (Martin, J., dissenting).