United States v. Vonner

KAREN NELSON MOORE, Circuit Judge,

dissenting,

joined by MARTIN, DAUGHTREY, COLE, and CLAY, Circuit Judges.

I join the opinion of Judge Clay in full, and I write separately to offer some additional observations on the flawed analysis in the majority opinion for two reasons. First, the majority’s application of plain-error review misconceives the nature of the “reasonableness” review that the Supreme Court in United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), directed that we undertake. The majority’s application of plain-error review is inconsistent with the Supreme Court’s recent decisions in Kimbrough v. United States, — U.S. -, 128 S.Ct. 558 , 169 L.Ed.2d 481 (2007), Gall v. United States, — U.S. -, 128 S.Ct. 586 , 169 L.Ed.2d 445 (2007), and Rita v. United States, — U.S. -, 127 S.Ct. 2456 , 168 L.Ed.2d 203 (2007). The majority’s plain-error analysis also deepens a growing circuit split that surely merits the attention of the Supreme Court, and the majority fails to offer meaningful guidance to the district courts and litigants in this circuit. Second, I write to explain why I would accept Vonner’s invitation to abandon the presumption of reasonableness that the majority has chosen to accord to within-Guidelines sentences and to note the precise nature of the presumption that the majority approves today.

I. APPLICATION OF PLAIN-ERROR REVIEW

I have three objections to the majority’s application of plain-error review in this ease. First, I agree with Judge Clay regarding the majority’s mistake in severing Booker reasonableness challenges into two separate claims, one a claim of “procedural” reasonableness and the second a claim of “substantive” reasonableness. As Judge Clay observes, although this court has noted that reasonableness has both substantive and procedural components, Clay, J., Dissenting Op. at 395 (emphasis added), “our jurisprudence ... indicated] *407 that these two inquiries are simply different aspects of the overall reasonableness review required by Booker” id. at 397 (citing, inter alia, United States v. Liou, 491 F.3d 334, 337 (6th Cir.2007)). 1

Furthermore, this understanding of reasonableness review as a single inquiry proceeding in two steps finds support in the Supreme Court’s recent opinions in Gall and Kimbrough . In Gall , the Supreme Court explained that appellate courts “must” review sentences under the reasonableness “abuse-of-diseretion standard,” stating that we “must first ensure that the district court committed no significant procedural error, such as ... failing to adequately explain the chosen sentence.” Gall, 128 S.Ct. at 597 ; see also id. at 598 (“As an initial matter, we note that the District Judge committed no significant procedural error.”). Next, “[assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. at 597 ; see also Kimbrough, 128 S.Ct. at 575-76 (stating that “the District Court thus rested its sentence on the appropriate considerations and ‘committed no procedural error’ ”) (quoting Gall, 128 S.Ct. at 600 ).

Nowhere in Gall or Kimbrough did the Supreme Court consider whether the Government had objected at the conclusion of the sentencing hearings to any procedural error committed by the district courts; presenting arguments prior to and during the hearings, as Vonner did, appeared sufficient to preserve the Government’s reasonableness arguments on appeal. The Supreme Court’s reasonableness analysis, in examining the district court’s procedure as a first step before turning to evaluate “the substantive reasonableness of the sentence imposed,” Gall, 128 S.Ct. at 597 , gives no reason to think that the two steps have different requirements for preservation on appeal.

The majority nonetheless dissects reasonableness review into an analysis of two separate claims, which is necessary for the majority to apply plain-error review to Vonner’s argument that his sentence is procedurally unreasonable due to the district court’s failure to explain adequately its reasons for imposing his sentence. The majority concedes that the lack of a final objection by Vonner’s counsel at the conclusion of the sentencing hearing “did not undermine Vonner’s right to appeal issues he had ‘previously raised.’ ” Maj. Op. at 386. The majority recognizes that Vonner had previously raised arguments for a lower sentence under United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), and for that reason, the majority correctly observes that “[a] litigant has no duty to object to the ‘reasonableness’ of the length of a sentence ... during a sentencing hearing ... because reasonableness is the standard of appellate review, not the standard a district court uses in imposing a sentence,” Maj. Op. at 389. Nonetheless, because the majority conceives of Vonner’s argument regarding the adequacy of the district court’s explanation as a separate claim that becomes “apparent as soon as the court finishe[s] announcing its proposed sentence,” Maj. Op. at 386, it applies plain-error review because *408 Vonner did not object prior to the conclusion of the sentencing hearing.

In so disarticulating Vonner’s Booker argument, the majority ignores the Supreme Court’s direction in Booker that the “reasonableness” standard of review involves “determining whether ... a sentence ‘is unreasonable, having regard for [the § 3553(a) factors and] ... the reasons for the imposition of the particular sentence, as stated by the district court.’ ” Booker, 543 U.S. at 261 , 125 S.Ct. 738 (quoting 18 U.S.C. § 3742 (e)(3) (1994 ed.)); see also Gall, 128 S.Ct. at 597 (stating that “the appellate court must review the sentence under an abuse-of-discretion standard” and that “[i]t must first ensure that the district court committed no significant procedural error” and that “the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard”). By arguing for a lower sentence under Booker , as the majority recognizes that Vonner did, Vonner effectively requested that the district court consider the § 3553(a) factors in sentencing him and also that the district court state “the reasons for the imposition of the particular sentence.” Booker, 543 U.S. at 261 , 125 S.Ct. 738 (internal quotation omitted). Persisting in its endorsement of an unwarranted schism between procedural and substantive reasonableness, the majority therefore incorrectly insists upon a further objection to preserve for appeal half of what Booker commands district courts to do and what Vonner requested this district court do. 2

In response to these arguments, the majority declares that it is not “the case that a request for a variance in the district court by itself preserves all procedural and substantive challenges to a sentence” and offers two hypothetical examples, Maj. Op. at 391, but its examples utterly miss the point. I agree that plain-error review would be proper for the majority’s hypothetical claims because the hypothetical defendant never raised the arguments before the district court. 3 That is not the *409 case here. Vonner argued for a variance under Booker , which specifically explained that the “reasonableness” standard of review would include evaluation of “the reasons for the imposition of the particular sentence, as stated by the district court.” Booker, 543 U.S. at 261 , 125 S.Ct. 738 (internal quotation omitted). By citing Booker , Vonner gave the district court notice that he sought a reasoned explanation for his sentence, and the district court could expect that our appellate review of the sentence would include an evaluation of the district court’s stated reasoning. Under Rule 51(b) and Bostic, properly understood, Vonner need do nothing more.

Second, the majority’s decision to apply plain error-review to one aspect of Von-ner’s Booker reasonableness claim also deepens a growing circuit split. For instance, in United States v. Bras, 483 F.3d 103 (D.C.Cir.2007), the D.C. Circuit rejected the partial plain-error review approach that the majority today embraces. In Bras , the defendant argued “that his sentence was unreasonable because the district court failed to adequately consider the sentencing factors listed in ... § 3553(a),” and “the government insisted] that [the appellate court] may review this claim only for ‘plain error,’ because [the defendant] did not ... object that the [district] court did not adequately consider the factors set forth in § 3553.” Id. at 112-13 (internal quotation omitted). The D.C. Circuit rejected the government’s argument, stating that “Reasonableness ... is the standard of appellate review, not an objection that must be raised upon the pronouncement of a sentence.” Id. at 113 (internal citation omitted). The Fourth Circuit has also adopted this view. See United States v. Baham, 215 Fed.Appx. 258, 261-62 (4th Cir.2007) (rejecting government’s argument that defendant’s failure to object rendered “his challenge to the procedure employed by the district court ... reviewable only for plain error, not for reasonableness” because the defendant “adequately preserved the issue for appeal by arguing that a sentence above the low end of the advisory guidelines range was unwarranted”) (citing United States v. Curry, 461 F.3d 452, 459 (4th Cir.2006)).

Admittedly, the majority is not alone in partially applying plain-error review to defendants’ challenges that their sentences are unreasonable under Booker. See United States v. Torres-Duenas, 461 F.3d 1178, 1182-83 (10th Cir.2006) (explaining that plain-error review applies to defendants’ challenges to the “method by which the sentence was determined” in the absence of a objection but stating that “when the claim is merely that the sentence is unreasonably long, we do not require the defendant to object in order to preserve the issue”). 4 Furthermore, the Fifth Cir *410 cuit applies plain-error review not only to the “procedural” component of defendants’ Booker reasonableness claims but also to the “substantive” component of reasonableness review. See United States v. Peltier, 505 F.3d 389, 391-94 (5th Cir.2007). Several other circuits have rejected the argument that defendants must object after the imposition of their sentence to preserve the substantive component of reasonableness review. See United States v. Curry, 461 F.3d 452, 459 (4th Cir.2006) (stating that a party’s failure to “restate its position after the sentence was announced, by lodging a futile objection at the end of a sentencing colloquy, is without consequence”); United States v. Swehla, 442 F.3d 1143, 1145 (8th Cir.2006) (“Once a defendant has argued for a sentence different than the one given by the district court, we see no reason to require the defendant to object to the reasonableness of the sentence after the court has pronounced its sentence.”); United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th Cir.2005) (stating that the court “fail[ed] to see how requiring the defendant to then protest the term handed down as unreasonable [after arguing for a lower sentence at the hearing and in a previously filed sentencing memorandum] will further the sentencing process in any meaningful way”).

In light of the strikingly different approaches adopted by the circuits, we can only hope that the Supreme Court chooses to resolve the issue of whether defendants must object after the district court has imposed a sentence to preserve some, any, or all, of their Booker reasonableness claims.

Third, because the majority elects not to “address the first step of plain-error review: Did the court err?” Maj. Op. at 387, the majority fails to provide guidance to the district courts and litigants in this circuit as to whether the district court’s cursory explanation of Vonner’s sentence is acceptable. The majority recognizes that “[n]o one would call [the district court’s] explanation ideal,” id., but district courts and litigants are left to wonder whether such a sentence and brief explanation would be reversed or affirmed on appeal in a future case in which the defendant lodges a post-sentence objection, as the majority today requires. The majority’s failure to offer a definitive answer to this question wastes the judicial resources invested by the fifteen members of this court who convened to consider this case en banc. In contrast to the majority’s silence, Judge Clay clearly states that the district court erred in this case. I agree that the district court’s explanation is insufficient to permit reasoned review and constitutes error; I also agree with Judge Clay’s view that the district court committed plain error.

II. THE PRESUMPTION OF REASONABLENESS

Unlike the majority, I would accept Von-ner’s invitation to abandon the “rebuttable *411 presumption of reasonableness” that we accord to sentences falling within a defendant’s “properly calculated” Guidelines range. United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006). Further, given the majority’s re-affirmation of the presumption, I believe it important to highlight the precise nature of the presumption that the majority approves today. Although in Rita the Supreme Court permitted the use of a non-binding, appellate presumption of reasonableness for within-Guidelines sentences, I agree with the reasoning of those circuits that have rejected the presumption and believe that we should end our use of the presumption for several reasons.

First, “[although making the guidelines ‘presumptively] ... reasonable’ does not make them mandatory, it tends in that direction; and anyway terms like ‘presumptive’ ... are more ambiguous labels than they at first appear.” United States v. Jiménez-Beltre, 440 F.3d 514 , 518 (1st Cir.2006) (en banc). See also United States v. Hunt, 459 F.3d 1180, 1185 (11th Cir.2006) (finding the presumption not “useful” because “[w]hether, after consideration of section 3553(a) in its entirety, a court finds the Guidelines to be compelling is a fact-specific judgment”).

Second, although “the Guidelines should be the starting point and the initial benchmark” for sentencing, Gall, 128 S.Ct. at 596 , nothing in the statutory text of § 3553(a) indicates that any great extra weight should be given to the Guidelines range. Indeed, § 3553(a) “contains an overarching provision instructing district courts to ‘impose a sentence sufficient, but not greater than necessary’ to accomplish the goals of sentencing” listed in § 3553(a)(2). Kimbrough, 128 S.Ct. at 570 (quoting 18 U.S.C. § 3558 (a)). But the Guidelines, in attempting to foster uniformity by basing sentences on “real conduct,” see Booker, 543 U.S. at 250-51 , 125 S.Ct. 738 , generally deem offender characteristics irrelevant under Chapter 5H. Employing a “presumption of reasonableness” and according extra weight to the Guidelines therefore seems unwise and unlikely to advance the “overarching provision” in § 3553(a) that sentences should be “sufficient, but not greater than necessary” to advance the goals of sentencing in § 3553(a)(2).

Third, I believe that applying a presumption of reasonableness to within-Guidelines sentences is unwise because of the potential for a violation of the Sixth Amendment in extreme cases. Although Rita permitted appellate courts to apply the presumption, the majority noted Rita’s argument that according a presumption of reasonableness to a within-Guidelines sentence that depended upon substantial judicial fact-finding “raises Sixth Amendment ‘concerns.’ ” Rita, 127 S.Ct. at 2465 . Justice Scalia has now written two concurring opinions highlighting that “the Court has not foreclosed as-applied constitutional challenges to sentences.” Gall, 128 S.Ct. at 602-03 (Scalia, J., concurring); see also Rita, 127 S.Ct. at 2479 (Scalia, J., concurring) (observing that the majority opinion “does not rule out as-applied Sixth Amendment challenges to sentences that would not have been upheld as reasonable on the facts encompassed by the jury verdict or guilty plea”) (citing Rita, 127 S.Ct. at 2466 -67 and id. at 2473 (Stevens, J., concurring)). Our continued use of the presumption encourages defendants to argue that, in their particular case, a sentence should be found unreasonable and possibly violative of the Sixth Amendment when judge-found facts vastly increase the Guidelines range and our affirmance depends in whole or in part upon the “presumption” that we afford to the Guidelines range. See also United States v. Conatser, *412 514 F.3d 508, 528-32 (6th Cir.2008) (Moore, J., concurring).

Finally, in light of these Sixth Amendment concerns, it is important to note the precise circumstances in which the majority today approves the use of the presumption. As the majority notes, although Von-ner argued that his sentence violates the Sixth Amendment because it was based on facts that no jury ever found beyond a reasonable doubt, because Vonner “fail[ed] to object to the presentence report, Von-ner admitted all of the factual allegations contained in it.” Maj. Op. at 385. Vonner’s case, then, is similar to the facts in Williams , the case in which our circuit first adopted the presumption. In Williams , the defendant pleaded guilty, and we noted that his “guilty plea and written statement [were] sufficient to constitute an admission” to the facts supporting the two Guidelines enhancements that the district court included in calculating the Guidelines range. Williams, 436 F.3d at 707 .

Our cases have repeatedly observed that we apply the presumption of reasonableness to a sentence “if it falls within a properly calculated guidelines range.” United States v. Heriot, 496 F.3d 601, 608-09 (6th Cir.2007) (emphasis added). We have applied the presumption of reasonableness in eases in which the calculation of the Guidelines range involved judicial fact-finding. See, e.g., United States v. Robinson, 503 F.3d 522 (6th Cir.2007). Because the presumption of reasonableness is our own creation, however, we could certainly choose to apply the presumption only to sentences that fall within the Guidelines range produced using solely facts that a defendant has admitted or that a jury has found beyond a reasonable doubt. 5 I am not aware of any case in which we have rejected such an argument that we should so narrow our understanding of the phrase “properly calculated Guidelines range” for purposes of applying our appellate presumption, 6 and the facts of Vonner’s case, involving an unchallenged presentence report, do not foreclose such an argument in the future.

III. CONCLUSION

For the reasons stated above and in the dissenting opinion of Judge Clay, I respectfully dissent.

. A view that reasonableness review consists of components also appears in the opinions of Justice Stevens and Justice Scalia concurring in Rita. See Rita, 127 S.Ct. at 2473 ("[0]ur remedial opinion in Booker[] plainly contemplated that reasonableness review would contain a substantive component.") (Stevens, J., concurring) (emphasis added); see also id. at 2476 , 2482-83 & n. 6 (stating that "I would hold that reasonableness review cannot contain a substantive component at all” while noting that " ‘[s]ubstance' and 'procedure' are admittedly chameleon-like terms”) (Scalia, J., concurring) (emphasis added).

. The majority is therefore mistaken in claiming that I am "abandoning'' the procedural rule that we adopted in United States v. Bostic, 371 F.3d 865 (6th Cir.2004). Because Vonner argued for a lower sentence under Booker to the district court prior to sentencing, he preserved claims regarding the district court's consideration of the § 3553(a) factors and the adequacy of the reasons stated for the imposition of his particular sentence. Fed. R.Crim.P. 51(b) ("A party may preserve a claim of error by informing the court — when the court ruling or order is made or sought— of the action the party wishes the court to take (emphasis added). Vonner’s "procedural” reasonableness argument — requesting that the district court offer a reasoned explanation for the sentence imposed — thus is an "objection[] already made,” Maj. Op. at 389-90, and Bostic has no effect on Vonner's appeal. Far from "abandoning” Bostic , I remain true to its intent, and the majority abandons Bostic today by transmogrifying it.

. To the majority’s two examples, I add a third, which illustrates the difference between issues that a defendant preserves under Booker and issues that remain un-preserved. Section 3553(c) states that, in cases in which the span of the Guideline range "exceeds 24 months,” a court “shall state in open court” the "reason for imposing a sentence at a particular point within the range” of the Guidelines. 18 U.S.C. § 3553 (c) (emphasis added). Because the Guidelines range for Vonner’s sentence exceeded twenty-four months — it ran from 108 months to 135 months— § 3553(c)(1) required that the court state its "reason for imposing a sentence at a particular point within the range.” Vonner, however, did not object at the sentencing hearing to the district court’s failure to comply with § 3553(c)(1), nor did he remind the district court of its obligation under § 3553(c)(1) prior to the hearing in his sentencing memorandum. Although in this case Vonner did not raise a claim of § 3553(c)(1) *409 error on appeal, if he had, we would properly review his § 3553(c)(1) claim for plain error. See United States v. Mangual-Garcia, 505 F.3d 1, 15 (1 st Cir.2007) (applying plain-error review to defendant's claim that district court violated § 3553(c)(1) by failing to explain the court’s choice of a sentence within a Guidelines range in excess of twenty-four months). Citing Booker reminded the district court of its general obligation to offer "a reasoned basis for exercising [its] own legal decision-making authority,” Rita, 127 S.Ct. at 2468 , and so preserved Vonner’s claims regarding the adequacy of the district court's explanation, but arguing for a variance under Booker did not preserve claims of error under § 3553(c)(1). Likewise, Booker arguments would not preserve the Guidelines-calculation claim of the majority’s hypothetical defendant, but Booker arguments should preserve the hypothetical defendant’s claim regarding the adequacy of the district court’s explanation.

. See also United States v. Villafuerte, 502 F.3d 204, 207-08 (2d Cir.2007) (applying plain-error review to claims that a district court failed to consider properly all of the § 3553(a) factors). The First Circuit also appears to apply plain-error review to claims *410 that a district court’s explanation for the sentence was inadequate. See United States v. Mangual-Garcia, 505 F.3d 1 , 16 n. 13 (1 st Cir.2007) (“To the extent that [the defendant] makes a separate argument that the district court failed adequately to explain his sentence (other than his § 3553(c)(1) argument), we find no plain error.”). Two further circuits have noted this issue but have not yet taken a position. See United States v. Wiley, 509 F.3d 474, 479 (8th Cir.2007) (Gruender, J., concurring) (noting that a panel in a future case may “hold[] that a party must object in order to avoid plain error review of challenges based on the district court’s failure to consider relevant factors”); United States v. Williams, No. 06-15962, 2007 WL 3118326 , at *1, - F.3d -, - (11th Cir. Oct.25, 2007) (declining to resolve whether to apply plain-error review to a defendant's argument that the district court failed to consider adequately the § 3553(a) factors).

. Obviously, our use of such a narrowed presumption would not preclude district courts from fact-finding, see Gall, 128 S.Ct. at 596 ("[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.”), nor would it mean that we would ignore the Guidelines range produced by their fact-finding. It would mean simply that only sentences imposed within the Guidelines range supported by a defendant's plea or the jury’s verdict would receive special weight, and a sentence imposed within a Guidelines range increased by judge-found enhancements would be accorded no special presumption of reasonableness.

. The statement in United States v. Smith, 510 F.3d 603 , 609 n. 2 (6th Cir.2007), that "[t]he presumption applies, moreover, notwithstanding that the Guidelines range was calculated using enhancements based on judge-made fact determinations” is clearly dicta. The opinion in Smith gives no indication that the defendant in that case offered any argument to limit the presumption.