United States v. Irey

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JULY 29, 2010 No. 08-10997 JOHN LEY ________________________ CLERK

D. C. Docket No. 06-00237-CR-ORL-31-DAB

UNITED STATES OF AMERICA,

Plaintiff-Appellant, versus

WILLIAM IREY,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Middle District of Florida _________________________ (July 29, 2010)

Before DUBINA, Chief Judge, and TJOFLAT, EDMONDSON, BIRCH, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR, MARTIN and HILL,* Circuit Judges.

* Senior United States Circuit Judge James C. Hill elected to participate in this matter pursuant to 28 U.S.C. § 46(c). CARNES, Circuit Judge:

“The federal courts of appeals review federal sentences and set aside those

they find ‘unreasonable.’” Rita v. United States, 551 U.S. 338, 341, 127 S. Ct.

2456, 2459 (2007) (citing United States v. Booker, 543 U.S. 220, 261–63, 125 S.

Ct. 738 (2005)). With that statement the Supreme Court opened its opinion in the

Rita case. Later in the opinion the Court was more specific and emphatic:

In sentencing, as in other areas, district judges at times make mistakes that are substantive. At times, they will impose sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur. Our decision in Booker recognized as much.

Rita, 551 U.S. at 354, 127 S. Ct. at 2466–67. We believe that the Supreme Court

meant what it said in the Rita opinion and elsewhere about our duty to correct

sentencing mistakes. At the same time, we recognize that our substantive review

of sentences is deferential and that we only look to see if the district court abused

its discretion by committing a clear error in judgment. Even so, the sentence in

this case can withstand review only if deference amounts to abdication, if

sentencing discretion is unbridled, and if “unreasonable” is a hollow term. The

sentence that the district court imposed is a clear error in judgment, a mistake, and

it is our responsibility to “correct such mistakes when they occur.”

The sentence is substantively unreasonable primarily, but not solely, because

of the nature and extent of William Irey’s criminal conduct. The steady stream of

2 criminal cases flowing through this Court brings us many examples of man’s

inhumanity to man, and we see a depressingly large number of crimes against

children. But the sexual crimes that Irey committed against some of the most

vulnerable children in the world set him apart. He raped, sodomized, and sexually

tortured fifty or more little girls, some as young as four years of age, on many

occasions over a four- or five-year period. He also scripted, cast, starred in,

produced, and distributed worldwide some of the most graphic and disturbing child

pornography that has ever turned up on the internet.

The horrific nature of Irey’s crimes resulted in an adjusted offense level that

would have led to an advisory guidelines range of life imprisonment. Because the

government had charged all of Irey’s crimes in just one count, the statutory

maximum was 30 years and that had the effect of reducing the guidelines range to

30 years as well. The district court, however, did not impose that sentence.

Instead, after deciding that pedophilia was an “illness” that had impaired Irey’s

volition, and pronouncing that Irey himself was a victim, like all of the little

children he had sexually violated for so long, the district court deviated downward

from the 30-year guidelines range and imposed a sentence of only 17 ½ years. Our

duty to set aside unreasonable sentences requires that we set aside this one.

3  I. The Criminal Conduct

William Irey had a seemingly insatiable sexual appetite. Or as a psychiatrist

he later retained would phrase it, Irey was “highly sexualized.” While in Orlando,

where he lived and had his business, Irey indulged his sexual appetite by

consorting with prostitutes on a weekly basis. As the psychiatrist put it, Irey

“engaged in other forms of sexually disordered behavior with prostitutes (e.g.,

sadomasochistic acts).” That went on for 15 years, despite the fact that he was

married the entire time.

Starting in 2001 Irey began spending two weeks out of every month in

China on business. On the weekends when he was there he would indulge himself

in more “sexually disordered behavior” by traveling to brothels in different Asian

countries. Early on he went to a brothel in Cambodia that featured underage girls

and discovered that he enjoyed having sex with children. Over a period of four or

five years, he “visited numerous brothels where they had underage children.” Irey,

who is 5'10" and weighs 200 pounds, was in his forties at the time. All of the

children he sexually abused were underage girls; none of them was older than

sixteen, and some of them were only four, five, or six years old.

Irey went to those brothels and had sex with the children “many many

times,” as he recounted it, during his numerous trips to that part of the world, and

4 as time went on he became “more and more obsessed and was returning to Asia

more and more often” to sexually abuse children. He paid the Cambodian brothels

up to $1,500 for the use of each child, and he would typically buy two or three of

the children at a time. When he was too busy in China on business to get away for

weekend visits to Cambodia, Irey would sometimes pay to have some of the young

girls flown to him so that he could sexually abuse them when he found the time.

Irey’s sexual violation of the children did not end until August of 2006 when law

enforcement in this country finally caught up with him.

The little Cambodian children whom Irey victimized were “abjectly

impoverished” and, as the district court noted, “perhaps the most vulnerable of the

world’s society.” We know some of the details of what Irey did to them because

law enforcement agents seized his computers and found that he had memorialized

at least part of what he had done in photographs and videos for his later viewing

pleasure. On one of his computer hard drives there were more than 1,200 images

of Irey sexually abusing the children, and that number does not include the obscene

images Irey produced of the children that do not show him in the picture.

Differentiating the children in so many images taken over a period of years is

difficult, but we know that Irey sexually victimized at least fifty different underage

5 girls.1

The photographs and videos Irey produced reveal some details of how he

violated and debased the children.2 There are images showing “Irey on a bed with

several prepubescent female Asian children performing oral sex on him while he

performs oral sex on them.” Other images depict “Irey engaged in anal and

vaginal intercourse with a prepubescent Asian female with the words ‘9 Yo Fuck’

marked on her body,” and “an arrow is painted on her body which points to her

vaginal area.” Some of them show “the writing ‘Front,’ ‘Back,’ ‘Brown,’ ‘Back

1 The number of little children who were Irey’s victims is literally countless. Irey himself apparently did not keep count, although he did recall that he bought children to sexually abuse “many many times,” usually two or three at a time, over a four- or five-year period. Some of the more than 1,200 obscene images Irey produced to preserve his perverse exploits show the faces of many children, but the images were not framed and focused to aid a head count, and with the passage of years the appearances of the children undoubtedly changed as they grew older while being sexually abused.

The Presentence Report states that “[t]here were over forty victims,” and Irey did not object to that statement but instead admitted it was true. During the sentencing hearing Assistant United States Attorney Cynthia Hawkins, who prosecuted the case, described Irey’s criminal conduct. In doing so she represented to the court that the number of his child victims was “over 50.” She also showed the court photographs of the faces of “about 50” of the child victims taken from the more than 1,200 images of Irey abusing them. Irey did not object to those photographs or to the representation that they showed about 50 of his victims or that there were “over 50” victims. In setting out its sentence findings, the district court stated about the circumstances of the crime: “I cannot quarrel with Ms. Hawkins’ description of that.” Based on that finding, and considering the AUSA’s undisputed representations at the sentence hearing, as well as the probability of an undercount, we will use 50 or “at least 50” as the number of victims. 2 All of the descriptions of Irey’s conduct contained in this and the next paragraph in the text are quoted from the Presentence Report. Irey did not contest the accuracy of these descriptions. Instead, he wrote to the district court that: “I have read the presentence investigation report dated 11-26-07. I have done the things which are graphically spelled out in it.” The district court adopted all of the factual statements contained in the report as the findings of the court.

6 door,’ ‘9 Yo Fuck’ on prepubescent girls’ bodies. The writing has arrows pointing

to the vaginal and anal areas.” Other images are of Irey “engaged in vaginal and

anal intercourse with prepubescent Asian girls” who are “tied up and bound with

black and grey duct tape.” There are also images “of Irey with nude prepubescent

children posing as trophies.”

Irey’s defilement of the little children did not stop at rape, sodomy, and

humiliation. He also tortured them. There are images of “Irey inserting a plastic

green/yellow glow stick, dildos, cockroaches and candy in the vaginal cavity of

prepubescent Asian females.” Some images show “Irey inserting a plastic tube

into the vagina of a prepubescent Asian female. Several of the images show the

plastic tube containing cockroaches crawling into the vagina of these children.”

One image shows him “performing vaginal intercourse on a prepubescent girl” and

“[i]mbedded on the image [in all capitals] is the phrase: ‘Big Cock Push Bug Deep

Into 9 Yo Girl, She Hurt in Pane.’”

If Irey felt any guilt about purchasing helpless little girls and subjecting

them to pain and degradation, the images he recorded do not show it. In some of

them he can actually be seen smiling as he inflicts the sexual abuse.

Irey did not use the massive amount of child pornography he produced only

for his own prurient perusal; he did not keep it to himself. He used copies of the

7 images he made to gain access to the collections of other purveyors of child

pornography. Irey gave them copies of the pictures and videos he had produced

showing his sexual violation and humiliation of the little Cambodian children in

return for their waiver of the access fee to the collections they already had on their

websites. Through that type of trade the operators of those websites were able to

add Irey’s graphic images to their collections, which led to those images being

spread around the world. Irey in turn was able to save some money while

expanding his collection of child pornography, and he was also able to minimize

the use of his credit card, which made it easier for him to hide what he was doing

from his wife.

II. The Capture and Conviction

Irey’s use of the internet led to his capture. Federal agents intercepted and

traced to Irey email messages that he had sent to an illegal website offering child

pornography. In one of those emails, which Irey sent in mid-January 2006, he

asked the website operator: “do you remember me from before. could I trade you

some of my latest pics for 30 days on your site. Let me know a good address to

send you some samples.” About a month later, agents intercepted another email

from Irey, which stated: “do you want trade some new pics never saw before. I

trade this for site access.”

8  The agents searched Irey’s house on August 13, 2006, and seized six

computers. On a hard drive they found a collection of more than 1,200 images of

Irey sexually violating young girls. The agents sent those 1,200 plus images to the

National Center for Missing and Exploited Children, which in turn provided an

extensive report about where the images had been seen before. More than 100

separate law enforcement agencies reported to the National Center that they had

previously turned up some of those images of Irey’s sexual abuse of underage girls

in their investigations of child pornography. The graphic images Irey had

produced and distributed were already widely known as the infamous “pink wall

series,” so named because of the pink walls that could be seen in the background of

some of the photos and videos. The series included images of some of the worst

child sexual abuse the agents had ever seen. And, as the Assistant United States

Attorney pointed out at the sentence hearing: the pictures of these children, some

of whom are “four or five, six years old . . . will forever be out there online.” As

the record of their abuse continues to circulate, “[t]hey will be victimized over and

over again.”

In a one-count indictment filed on December 13, 2006, Irey was charged

with violating 18 U.S.C. § 2251(c). The indictment alleged that he “did knowingly

employ, use, persuade, induce, entice, and coerce minors to engage in sexually

9 explicit conduct outside the United States, for the purpose of producing visual

depictions of such conduct, and transporting such visual depictions to the United

States by any means, including by computer and mail.”

Irey was taken into custody on December 14, 2006. He was released on an

unsecured bond conditioned on his being housed in a psychiatric facility “for

treatment of mental health issues related to the current charges.” He remained at

that facility near his home for at least thirteen months.

At a change of plea hearing on July 2, 2007, Irey pleaded guilty to one count

of violating 18 U.S.C. § 2251(c). When asked to tell the court what he had done,

Irey replied: “Went to—overseas, visited numerous brothels where they had

underage children and photographed them, had sex with them, and had them on my

laptop when I entered the United States.” He added that it happened over a period

of four years,3 the last time being in 2006. Irey agreed with the government’s

statement at the hearing that he had admitted to the agents that while overseas he

had sex with children he knew were minors, had produced pornographic images of

that, and had then transported those images back into this country.

3 Although Irey stated at the change of plea hearing that his sexual abuse of the children occurred over a period of four years, he told Dr. Ted Shaw that it occurred over a period of five years.

10  III. The Sentencing Proceedings and Sentence

A. The Calculation of the Guidelines Range

The Presentence Report began the calculation of Irey’s guidelines sentencing

range with a base offense level of 32 under U.S.S.G. § 2G2.1(a), because the

offense was one involving the sexual exploitation of minors by production of

sexually explicit visual or printed matter. Added to that base offense level were

four levels under § 2G2.1(b)(1) because the offense involved children under the

age of 12; two levels under § 2G2.1(b)(2)(A) because the offense involved the

actual commission of sexual acts; two levels under § 2G2.1(b)(3) for distribution

of child pornography; and four levels under § 2G2.1(b)(4) because it involved

material portraying sadistic conduct, producing an adjusted offense level “subtotal”

of 44. Then two levels were added under § 3D1.4 as a result of grouping because

of multiple victims.4 Those additions produced a combined adjusted offense level

of 46.5 From that were deducted two levels under § 3E1.1(a) for acceptance of

4 Although only one count was charged in the indictment, the guidelines consider each separate victim as a separate “group” for purposes of offense-level calculation. U.S.S.G. § 2G2.1(d)(1). In this case, the PSR did not proceed beyond two groups because two were enough to put the defendant’s combined adjusted offense level at 46 and his final offense level at 43, which is the maximum level available under the guidelines. Had the PSR considered all fifty children, five levels would have been added rather than two (the grouping ceiling is fixed at 5 levels regardless of the number of offenses), which would have given Irey a combined adjusted offense level of 49 and a final offense level of 46. 5 The Presentence Report pointed out that under § 2G2.1 cmt. n.6, “[a]n upward departure may be warranted because the offense involved more than ten minors.” No upward departure was requested by the government or applied by the district court, probably because it

11 responsibility and an additional level under § 3E1.1(b) for timely notification of

intent to plead guilty. Subtracting those three levels from the 46 produced a final

offense level of 43.

Because Irey had no prior convictions his criminal history category was I.

Even with that category an offense level of 43 produces an advisory guidelines

imprisonment range of life. The statute under which he was convicted, however,

carries a statutory maximum of 30 years. See 18 U.S.C. § 2251(c). As a result, the

guidelines “range” became 360 months (30 years); there was no spread—the top

and bottom of the range were the same. See U.S.S.G. § 5G1.1(a) (“Where the

statutorily authorized maximum sentence is less than the minimum of the

applicable guideline range, the statutorily authorized maximum sentence shall be

the guideline sentence.”).

Neither party objected to the calculation of the guidelines range. In his

sentencing memorandum, Irey’s counsel stated: “Mr. Irey does not object to the

Probation Officer’s advisory guideline calculations and does not seek a downward

departure from the guideline range described in the PSR.” Irey did, however, ask

for a sentence below the guidelines range of 30 years. The statute requires a

minimum sentence of 15 years. See 18 U.S.C. § 2251(c). Irey’s sentencing

would not have made any difference since the adjusted offense level and criminal history score worked out to a guidelines imprisonment range of life even without an upward departure.

12 memorandum argued that “[a] sentence of 15–20 years in prison, followed by a

substantial term of supervised release” should be imposed.

The government filed a sentencing memorandum arguing that “[i]f this case

is atypical, it is because of aggravating, not mitigating, factors,” and it urged the

court to impose a sentence equal to the guidelines range and statutory maximum of

30 years. The government told the court that it “should give great weight to the

findings of Congress . . . that departures should be extremely rare in child sex

crime cases” because of the seriousness of those crimes. It specifically argued that

any variance based on Irey’s “diminished capacity, aberrant behavior, or family

ties and responsibilities” would result in an unreasonable sentence. The

government also pointed to precedent establishing that a guidelines sentence may

be appropriate even where, in the government’s words, the defendant’s

“psychological evaluation [had] found that he was not a significant risk to children

or likely to molest children in the future.” See United States v. Scott, 426 F.3d

1324, 1327, 1330 (11th Cir. 2005).

In anticipation of the argument that Irey’s actions were “not purely

volitional,” the government argued that Irey “has not shown that his mental

condition is outside the heartland of similar cases” and cited two of our decisions

in support of that proposition. See United States v. Caro, 309 F.3d 1348, 1353

13 (11th Cir. 2002) (“[M]ost people who collect a sizeable amount of child

pornography are in someway addicted to collecting it.”); United States v. Miller,

146 F.3d 1281, 1285 (11th Cir. 1998) (“Nor would poor impulse control be

unusual [for a collector or purveyor of child pornography], regardless of whether it

stemmed from an impulse control disorder. . . . An impulse control disorder is not

so atypical or unusual that it separates this defendant from other defendants.”).

Acknowledging that Irey may have “rationalized his crimes against children by

failing to perceive the harm he was inflicting,” it argued that “is not so uncommon

as to take this case out of the heartland.” In regard to the possibility that Irey, as a

pedophile, may have “experience[d] self-deceptive thought processes,” the

government emphasized that he “has horribly sexually abused numerous children

over a period of years.” The government’s sentencing memorandum concluded by

arguing that “any variance under 18 U.S.C. § 3553(a) would be unreasonable

because there is nothing unusual about the nature or circumstances of this offense

or the defendant’s personal characteristics.”

B. The Reports of the Psychiatrist and Psychologist

In connection with sentencing defense counsel hired two experts in the field

of psychology and psychiatry, and he furnished their reports to the court. One of

the reports was from Dr. Fred Berlin, who is board-certified in both general and

14 forensic psychiatry. Although he did not testify at the sentence hearing, his report

is mentioned in the Presentence Report, a copy of it was attached to defense

counsel’s objections to the Presentence Report, and it was discussed by Dr. Shaw,

who did testify at the hearing.

Dr. Berlin reported that Irey “has a psychiatric disorder known as

heterosexual pedophilia,” which means “he experiences a strong sexual attraction

to prepubescent girls; girls who ordinarily are less than thirteen-years-of-age.” Dr.

Berlin stated that Irey was capable of relating intimately to an adult woman, but he

found that Irey “experienced intense sexual cravings for female children as well.”

Irey was “highly sexualized” and admitted to having “engaged in other forms of

sexually disordered behavior with prostitutes (e.g. sadomasochistic acts), and . . .

having viewed images involving bestiality on the Internet.” Nonetheless, Dr.

Berlin asserted that “to the best of my knowledge and belief, he has never coerced

an unwilling person against their will.”6

Dr. Berlin gave his opinion that “a sexual disorder such as pedophilia does

6 In view of the undisputed facts, that statement is astounding. We find it inconceivable that Dr. Berlin believes impoverished Cambodian children, who are among the most vulnerable people in the world, willingly submitted to being bound by duct tape and sexually penetrated orally, vaginally, and anally by a 200-pound adult male, as well as to having various objects, including glow sticks, dildos, and cockroaches pushed into their vaginas, while they, in Irey’s words, “Hurt in Pane.” The only plausible explanation is that Irey was less than forthcoming with Dr. Berlin about the details of what he had done to those children “many many times” over at least a four-year period.

15 not develop as a consequence of a volitional decision.” He also stated, however,

that “[a]lthough it is not [Irey’s] fault that he has the disorder, it is his

responsibility to do something about it.” Dr. Berlin thought that Irey needed

professional treatment but he also pointed out that “[e]ven without treatment, in the

past, he had been able to refrain from any sexual contact with children within the

United States.”

Dr. Berlin’s report stated that he had found no evidence to suggest that Irey

was “characterlog[icall]y flawed,” and concluded that he was “not generally anti-

social or psychopathic in his psychological makeup,” nor was he “a man who has

generally lacked a sense of conscience.” Instead, he thought that Irey had often

simply been unable to “readily appreciate the extent of his improprieties” with the

children. Dr. Berlin denied that Irey had “a malicious disregard for the well-being

of the girls in question.” Instead, in his professional opinion, “Mr. Irey did have a

genuine affection and concern for those youngsters at that time” and actually

thought he was helping the little girls he was sexually abusing.7 Dr. Berlin’s view

7 Irey himself probably would disagree with Dr. Berlin’s opinion that he had not fully appreciated the wrongfulness of his conduct. In a letter he wrote to the district court a week before sentencing, Irey admitted to having visited the child brothels in Cambodia “many many times,” even though he knew the girls were minors and that it was wrong, adding “but it was to[o] late, my sex addiction was now in full control of me.” Later in the letter, Irey said: “I [had] wanted to stop this insanity for at least 15 years, but I could not. I was sneaking out to pick up prostitutes, I was leading a double life. I had developed this terrible dark side.”

Dr. Berlin’s theory that Irey had not fully appreciated the wrongfulness of what he was

16 is that, except for the fact that he had spent four or five years raping, sodomizing,

and sexually torturing some of the most vulnerable children in the world, Irey is

“an otherwise decent man.”

Dr. Ted Shaw, a psychologist, was also retained by the defense, and he

submitted a “psychosexual evaluation report” on behalf of Irey. When Dr. Shaw

evaluated Irey on August 23, 2007, Irey was at the Lifestream Behavioral Center in

Leesburg, Florida, “on conditional release from jail.” He was undergoing

treatment for alcohol abuse problems and sexual addiction. According to Dr.

Shaw, a review in May 2007 indicated that Irey “was making appropriate

progress,” although his wife and children “refused to attend personal counseling”

as part of the family sessions.

Irey admitted to Dr. Shaw that he had used prostitutes in this country and in

doing so had contracted a venereal disease, which he passed along to his wife.

Irey had also “experimented with bisexuality” and had “enjoyed consensual

bondage” with adult females. Irey “described a lack of interest in well-endowed

doing to the little children in Cambodia apparently was too much of a stretch for Irey’s defense counsel. Counsel did argue in his sentencing memorandum that “Irey has been diagnosed as a pedophile, and had a limited ability to control the behavior supporting the offense of conviction.” He never argued, however, that Irey had not realized what he was doing was wrong or failed to appreciate fully the wrongfulness of his criminal conduct. Not in his sentencing memorandum, or at the hearing, or in his panel brief, or in his en banc brief. More importantly, the district court never found that Irey had not fully appreciated the wrongfulness of his conduct, but only that the conduct was not purely volitional and instead was in substantial part due to his pedophilia.

17 women,” telling Dr. Shaw that “when he married his wife she was thin and had

small breasts,” but “[h]er physique has changed over the years.” Irey admitted

that he had visited child brothels in Cambodia “for the past five years.” He did,

however, lie to Dr. Shaw about some of the details of his sexual abuse of

children.8 Irey acknowledged, though, that the children “suffer the most and are

victims.”

Dr. Shaw’s report noted Irey’s escalating sexual interest over the preceding

ten years, which “could be described as a ‘sexual addiction,’ with many behaviors

and an obsessive fixation which included frequent masturbation, anonymous sex

with prostitutes and the eventual use of brothels in Cambodia.” He described Irey

as “sexually obsessed for at least the last ten years,” and stated his opinion that

“Irey’s paraphilias clearly drove his behaviors, in spite of being an otherwise

moral and responsible individual, upon whom many people, including family,

clients and employees, depended.”

Under one of the risk assessments that Dr. Shaw applied, Irey’s score

“places him in the Medium-Low risk category for sexually re-offending.”

8 Irey told Dr. Shaw that some of the girls he had sex with “were in their early teens, with the youngest being about twelve.” In fact, as Irey knew and would later acknowledge, the photographs he made showed that many of the girls were younger than twelve and some were as young as four years of age. Irey also told Dr. Shaw that he would only have oral sex with the girls who appeared younger than twelve years of age. However, a photograph Irey made shows him having vaginal intercourse with a young girl, and “[i]mbedded on the image [in all capitals] is the phrase: ‘Big Cock Push Bug Deep Into 9 Yo Girl, She Hurt in Pane.’”

18 Another one, the Minnesota Sex Offender Screening Tool-Revised, resulted in a

score that placed Irey in the “Moderate Risk Range.” More specifically, Dr. Shaw

said, “the five-year, ten-year, and fifteen-year recidivism rates for individuals in

the development research study with Mr. Irey’s score are 12%, 14%, and 19%.”

Overall, he reported, “the dynamic and static factors, suggest a moderate to low

moderate risk of a new charge,” which “can be reduced through continued

treatment and informed supervision upon his release.”

C. The Sentence Hearing

The court began the sentence hearing, which was held on January 29, 2008,

by noting that it had reviewed the sentencing memoranda, the presentence report,

and Dr. Shaw’s report. The first witness was Dr. Shaw. He gave his opinion that

Irey has “a long-standing problem with sexual obsession,” and “something like

sexual addiction,” and in American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders (4th ed. text rev. 2000) (DSM-IV TR)

terms, “obsessive-compulsive type disorder, not the full-blown disorder, but with

the sexual behavior being the most prominent feature.” So far as he could tell,

there was not enough evidence to diagnose Irey with any personality disorder. Dr.

Shaw said that Irey is “very low in psychopathy” and explained that “he has this

encapsulated area where he was cheating, where he was lying, where he was

19 violating laws; but outside of that, he was—appears to be—to have been a law-

abiding citizen.”

As for Irey’s risk of sexually abusing children again, Dr. Shaw testified

that: “He’s essentially in the medium low to medium or moderate risk categories,

which is—which is below a threshold of likely.” The risk might be further

reduced with the use of certain drugs, but he was hesitant to recommend that the

court require them given all of their side effects and the fact “that they’re not

always useful.” He also noted that Irey is going to be older “when and if he’s

released, and he’s going to have experienced a reduction naturally in testosterone

and a reduction in sex drive.” Dr. Shaw summed up the risk situation:

So overall, I find him to be, as I said, a moderate risk, a low- moderate risk, low in psychopathy. He does have—has deviant interests. Those interests, he himself has been working on reducing and are likely somewhat reduced already. They are fueled by obsessive thinking and masturbating and by the sex acts themselves.

The court questioned Dr. Shaw about pedophilia, asking him: “I mean, is it

an illness? I mean, how would you describe that as a mental health professional?”

After noting that Dr. Berlin was on the committee that defined it for purposes of

the DSM–IV TR, Dr. Shaw testified:

I’ll take my shot at it. It is a disorder of sexual interest and behavior, and you can have the diagnosis with only the interest. So you could be fascinated, sexually attracted to children and never act on it, and—but if it troubled you or caused any problems for you, you

20  would still be diagnosable with that disorder, and that is being attracted to or engaging in behaviors, sexual behaviors, with prepubescent children.

So it is clearly a well-recognized disorder, and I thought that Dr. Berlin did a good job of saying that it’s not a disorder that someone chooses. It’s something that is within you and you have some tendency towards it.

And frankly and quite sadly, I think the availability of child images, particularly on the Internet, has fueled an epidemic of pedophilia that was kind of probably in the background, people might not have even known that they suffered from it, and then come across these images. But nonetheless, it is a treatable disorder. So it’s a disorder that has different origins.

And Mr. Irey talks about how the disorder manifested itself for him in his being provided with a very young—or very young prostitutes without asking for them initially; but then he found himself first repelled but then attracted to them, and that’s that sort of natural biological disorder part of it that’s different from the moral and ethical issues.

So for another person, if they had been in the same situation, they may have been repulsed and stayed repulsed by it and, you know, not—just said, “Don’t ever do that again and I’m not interested;” but that led him into a spiral of interest in children sexually. So that’s the way that it’s manifested itself here.

The district court then remarked that “people accuse me of not knowing

what I’m talking about when I say it’s an illness, and maybe I don’t. That’s why

I’m asking you.” The court continued:

And I guess the question is, from a standpoint of criminology, is a person who acts out as a result of this condition acting totally of rational free will or is that person acting out as a result of something

21  that is in essence an illness that he at that point has no control over? Do you understand what I’m saying?

Dr. Shaw answered:

I do, Your Honor. I think that the fact that pedophilia is not an underlying element for competency or sanity – it is an Axis I, treatable disorder. Those of us who have been in the field – I’ve been in the sex offender field actually since 1976; and there were pioneers in the field before me, long before me. We have been treating pedophilia for decades.

It is—I think that the problem that a lot of lay people have is in distinguishing between people who are disordered, seriously disordered, and curability versus treatability. Pedophilia is very treatable, and there are many pedophiles in the community who are doing just fine and managing their behavior.

As I’m sure you know, probationers, U.S. probationers, are now subjected to an annual polygraph about whether they are following the rules of their probationer or whether they are re- offending. Pedophiles are capable of not re-offending, even if they have an urge, in the same way that compulsive dessert eaters can choose to not eat dessert.

They have different levels of struggling, and there are aids to that: Good supervision, good treatment, replacing those needs with healthy needs. A lot of treatment is helping people understand the origin of their disorder and then teaching them to, first of all, be aware of the danger signs, the risks to relapsing, but at the same time replacing the way that they were meeting the needs met with the disordered behavior, meet them in healthy ways; and that’s something people can be taught. People like Mr. Irey, who’s bright, who has been successful in business, he can certainly learn the techniques that we teach to prevent—be responsible himself for preventing a reoffense.

It’s—I think because we like to say, “You can’t be cured”—in

22  other words, the best long-term treatment is to be alert to the problem and to—that’s not a cure. Cures, you can forget about it. Just go be around kids again and don’t worry about it. That, we can’t do.

But there are, you know, thousands of pedophiles and child molesters, different, out there, in my belief, who aren’t re-offending, who are in recovery and doing just fine. The new treatments that we use are, I think, very effective.

On cross-examination, Dr. Shaw confirmed for the record that Irey was “a

pedophile with a sexual interest in children younger than 13, prepubescent

children.” As for Irey’s risk assessment, he conceded the study it relied on was

not confined to pedophiles but also included other sex offenders. Dr. Shaw also

acknowledged that he had not looked at any of the photographs of Irey’s victims

and did not know how many victims there were. When asked if it would surprise

him to know that Irey had sexually molested “over 50 children,” he responded that

it wouldn’t because Irey “did admit that he had become more and more obsessed

and was returning to Asia more and more often.”

Other than Dr. Shaw the only people who submitted statements for, or

testified at, the sentence hearing did so as character witnesses for Irey. Although

they had not been willing to fully participate in family therapy with him, all of

Irey’s immediate family did make statements on his behalf either by video (wife,

daughter, and a son) or in person (two other sons) at the sentence hearing. In his

short video statement, Irey’s youngest son told about his father building a

23 clubhouse and dirt bike track. In her short video statement, Irey’s daughter (age

16) described her father as “loving” and said that he “has taught me how to be

strong, respectful, honorable, loyal, and the list can go on and on.”

In her video statement Irey’s wife of 25 years described him as “a loving

and wonderful husband and father” who is “mindful of other people’s feelings.”

She said that he was a member of the Rotary Club, the Masons, the United Way,

the YMCA, the local theater, the Shriners, and a charity called “Give Kids the

World.” He was so good and kind that he had even rescued and taken in a stray

dog. Indeed, she proclaimed that she had been “very blessed to have been part of

Bill’s life for so many years. He’s taught me so many things.” After watching her

video statement, the district court stated: “I understand that Mr. Irey has been a

good family man and has family support.”

Irey’s oldest son (age 24) testified that his father had taught him “so much

about life and love” and called him “my hero, my star, our father.” His middle

son (age 20) testified that Irey had taught him “to stick up for the little guy

because a lot of times nobody else will,” and that Irey did things “to make this

world what we all envision it could be.” A friend of Irey’s testified that Irey had

used his contacts in China to help out the family of that man’s wife in China. He

also added that during his 32 years of law enforcement in New York City he had

24 seen “a lot of bad people and Billy Irey is not one of those people.” Irey’s brother

testified about how Irey, when a senior in high school in 1976, had loaned his coat

to an accident victim, which was typical of his “random acts of kindness,” and

how if someone was in need, you could count on him.

No one was more effusive in his praise of Irey than his nephew. He

recounted how his uncle had helped get him a computer for college, had listened

to him talk about his aspirations, and had helped others over the years. He

proclaimed that Irey “had a way of touching people’s lives in a way that I’ve

never seen before,” and “bring[ing] out the best in every single person that he

meets.” Irey is, in his view, “the most spirited and the most giving person” and

“overall is just one of a kind.” He even said that: “I like to think that when God

created Uncle Bill, He took a step back and He said, ‘I’m really going to like this

one.’”

At the conclusion of the evidence, defense counsel argued that a sentence to

the statutory maximum of 30 years would be “greater than necessary for Mr. Irey

in light of the mitigation that’s been presented.” He assured the court that he was

not trying to minimize “the gravity of the acts with which Mr. Irey is charged,”

but argued that they were “a compartmentalized area of his whole being that is a

result of his pedophilia.” He argued that Dr. Shaw’s testimony and Dr. Berlin’s

25 report established that “the behavior of a pedophile is not totally volitional, that is,

it is dictated in some degree by the disease itself.” He also argued that Irey had

“lived, other than this disease and this addiction, an exemplary life.” Counsel

cited three decisions, two from this Court and one from the Eighth Circuit, which

affirmed sentences below the guidelines range in cases involving defendants

convicted of distributing child pornography over the internet.9

Counsel told the court that if Irey were sentenced to the 30-year guidelines

range sentence he would be 81 years old when he got out.10 Instead of that

sentence, counsel asked the court to impose one of “between 15 and 20 years here

with up to lifetime supervised release.” Counsel asserted that a 15- or 20-year

sentence “would make him 66 or 71 when he got out, if he served the entire

9 The decisions cited were United States v. McBride, 511 F.3d 1293 (11th Cir. 2007), United States v. Gray, 453 F.3d 1323 (11th Cir. 2006), and United States v. White, 506 F.3d 635 (8th Cir. 2007). In none of those cases did the defendant actually produce the child pornography he distributed. And there is no indication that the acts depicted in the pornography involved in those three cases even came close to the depraved nature of the acts graphically depicted in Irey’s pink wall series. 10 That statement is not entirely accurate. Under 18 U.S.C. § 3624 federal inmates routinely receive 54 additional days credit toward the service of their sentence at the end of each year that they have served with good behavior (with the credit for the last year or part thereof being prorated and credited within the last six weeks of the imprisonment). Because of § 3624 Irey could complete a 30-year sentence in 26 years and 2 months, and he would be 76 years old when released, not 81. See 18 U.S.C. § 3624; 28 C.F.R. §§ 523.20, 541.13 (2005); see also Barber v. Thomas, 130 S.Ct. 2499 (2010).

26 sentence.”11

After defense counsel made his argument, the court asked if Irey wanted to

say anything. In brief remarks, Irey apologized to “the government agents that

have had to get involved in my horrible deeds,” to “the federal attorney’s office,”

to the court, “to the children that I have harmed over the last several years of

going to Cambodia,” to his family, and to “my employees, that I’ve pretty much

hurt them.” He also said: “I’ve hurt a lot of people and I can’t undo that, but I

can learn from that and I’m willing to learn.”

The AUSA then argued in favor of the advisory guidelines range sentence

of 30 years. She reminded the court that Irey “is not being prosecuted for being a

pedophile; he’s being prosecuted for the acts that he committed.” She argued that:

“As an alcoholic does not have to drive a car, a pedophile doesn’t have to put

themselves in a brothel in Cambodia, which this defendant did for years and years

and years, Your Honor.”

The AUSA reminded the district court that the description of Irey’s conduct

in the Presentence Report included: “writing filth on children’s bodies, inserting

11 The “if he served the entire sentence” condition is important, because Irey would not have to serve his entire sentence unless he behaved so badly in prison that he did not qualify for the § 3624 additional credit for good behavior. See supra note 10. Assuming good behavior, Irey would complete a 15-year sentence in 13 years and 1 month, and be released at age 63; he would complete a 20-year sentence in 17 years and 5 months, and be released at age 68. See 18 U.S.C. § 3624; 28 C.F.R. §§ 523.20, 541.13 (2005); see also Barber, 130 S.Ct. 2499.

27 objects into them, binding them up and tying them up, treating them—posing

them as trophies, and having several of them engaging in acts with him and with

other children at the same time, [and] this is not run-of-the-mill child pornography

. . . if there is such a thing.” She stressed that this is a production case, and “the

defendant clearly had two different parts of his life going on; but in this one, he

was the star, the writer, the director, and, at the end, a person who ruined, just

absolutely and forever ruined over 50 children’s lives.”

During her argument, the AUSA showed the court photographs of about

fifty of the children taken from Irey’s pink wall series; none of those particular

photos showed any obscene acts or revealed private parts; they did show some of

the children’s faces. She pleaded with the court to “look at these babies’ faces,”

pointing out that “some of these children are four or five, six years old. They’re

babies, Your Honor.” Referring to the child pornography that Irey produced

involving these same children, she pointed out that “[t]heir pictures will forever be

out there online. They will be victimized over and over again . . . . Their lives

can never be the same.”

The AUSA also informed the court that when Irey was caught and the cache

of child pornography he had produced was found on his computer, the National

Center for Missing and Exploited Children contacted law enforcement agencies,

28 which expressed astonishment that “you’ve found the person who produced the

‘pink wall’ series.” The series “was infamous on the Internet, and is turning up

even in cases now, that we’re finding more and more of the pink wall series of

these young children.”

The AUSA also pointed out that “in some of the photographs, the defendant

is smiling as he perpetrates this abuse.” She asked: “How can we square this with

the stories we’ve heard today? How can you treat a dog better than you treat a

human being, a defenseless baby?” Answering her own question, she argued that

“[i]t makes no sense other than there’s something really, really bad about the

defendant.” She also asked the court to consider the offense and victimization,

and argued that “[t]he message we send to people who would do this has to be

considered.” She pointed out that the defendant’s conduct, according to his own

admissions, was “not even just child rape and child molestation, but dealing with

prostitutes, lying when he doesn’t have to,” and stealing. She characterized him

as a person “who lies and steals and hurts other people.”

Focusing on the 1,200 images in the collection of child pornography that

Irey produced, the AUSA argued that there is no better word for it than “torture.”

She pointed out that what Irey did to the small children produced “some of the

most egregious images that the agents have ever seen,” and Irey had been doing it

29 for years and on many occasions and paying up to $1,500 for the rights to use

particular children in any way he wanted.

The AUSA concluded her remarks by asking the court to impose a 30-year

sentence, the maximum the law allowed, in order to do “justice for these children

who cannot plead on their own behalf.”

D. The Sentence Findings and Sentence

The court began its sentencing remarks by stating that sentencing was the

hardest thing it had to do and was “particularly difficult in cases like this.” The

court noted the statutory minimum or floor was 15 years and the ceiling was 30

years, which was also what the court called “the guideline score.” The court

observed that while it was to take into account the guidelines score and consider

that score as a benchmark throughout the analysis of the 18 U.S.C. § 3553(a)

factors, the guidelines are not mandatory; while an important element of the

sentencing calculus, the result of the guidelines calculation is only advisory. The

court then stated that it needed to look at the other § 3553(a) factors on an

individualized basis in order to determine an appropriate sentence for the case.

Because of the importance of the court’s sentence findings and explanation,

we set them out in full:

The first thing I need to do is consider the nature and circumstances of the offense, and I cannot quarrel with Ms. Hawkins’

30 description of that. The conduct here was horrific. The victims were numerous and perhaps the most vulnerable of the world’s society. So I don’t think there’s any question but we’re dealing with here with an offense that rises to the very top in terms of its seriousness and its effect on other human beings.

These young children were victims who may never, never overcome their abuse. I recognize, of course, that Mr. Irey and his family and friends are also victims here; and society at large is a victim because, as Dr. Shaw indicated, with every new development in human history, there seems to come good and bad with it; and with all the good of the Internet, perhaps one of the bad features of it is that it has made possible what Dr. Shaw describes as an epidemic of child pornography. And, unfortunately, we here in the court system witness that and have to deal with it; and our government, in an effort to deal with it, has imposed—has criminal penalties, very harsh sentences for conduct like this.

So in terms of the characteristics of the offense, the seriousness of it itself, the long-standing, long-term engagement in it certainly does not mitigate in favor of any leniency.

But next I need to look at the history and characteristics of the defendant. By all accounts, Mr. Irey has been a good husband and father for his wife and children and a good friend to his friends and a good person to his community. The lies and thefts, I think, referred to by Ms. Hawkins were essentially part of his effort to cover up his illness, because I think other than the acts of Mr. Irey, there’s no indication that he has engaged in any other sort of criminal conduct or conduct representing poor character.

Also, in terms of the characteristics of the defendant, I think we’re just beginning to learn what pedophilia is and how to deal with it. I think if you look at the reports of the mental health people here and into the literature, which I have done, Mr. Irey’s acts that bring him here today, I think it’s safe to say, were not purely volitional. I think they were due in substantial part to a recognized illness. And while it does not excuse his conduct and he will still be held

31 accountable for it, I think it would be inappropriate to ignore that fact.

I also think it’s appropriate to credit the opinion of the mental health professionals who indicate that Mr. Irey is pursuing treatment and is doing so apparently successfully and, in the view of the mental health professionals, is treatable and has a low risk of recidivism.

Of course, all of that is somewhat academic because by the time he gets out of prison, he’ll be most likely at an age where recidivism would be unlikely, just from a physiological standpoint.

Mr. Irey obviously has a very loving family, and I know he’s proud of his family and deserves whatever credit he should take for having produced these people who have come here today to speak for him. And I know it was difficult for the family, but I think that your support is important and says a lot, not only about your family, but about Mr. Irey himself.

Another aspect of the defendant’s character, as I have alluded to, of course, not his character but his individual characteristics, is his age. As I indicated, even the minimum sentence here, he’s going to be an old man. I guess that makes me an old man, but he will certainly be an older man when he gets out of prison; and that’s, I think, a factor to take into account.

There are other aspects of the statute that essentially are subjective in nature. Of course, adequate deterrence to criminal conduct. I mean, a serious sentence is hopefully going to deter others from conducting similar affairs, although when we’re dealing with an illness like this, I’m not sure that that rationally follows. But, nevertheless, deterrence is an appropriate consideration, and a stiff sentence is in keeping with the seriousness of this offense.

As far as protecting the public from further conduct of this defendant, for the reasons I’ve indicated, I think that militates against a 30-year sentence, given his age, given the fact that he apparently recognizes now, from everything I’ve seen, he recognizes the

32 condition that has led him to commit these acts and to put himself and his life and his family’s life in the order that it is. He’s taken the first step toward rehabilitation and appears to be amenable to treatment and also, according to the mental health professionals, is of low risk of recidivism. So I don’t think society needs further protection from him, at least beyond the statutory minimum sentence.

As often happens in these cases, my judgment—and I am a fallible human being. So what I do is not necessarily right. I just do the best I can under the circumstances. It comes down to my view of what promotes respect for the law and provides just punishment. And here, as indicated, I think that a 30-year sentence, given the personal factors that I have touched upon, is greater than necessary to accomplish the statutory objectives.

On the other hand, in light of the seriousness of the crimes, I think a sentence above the mandatory minimum is called for.

So having said all that, it’s the judgment of the Court that the defendant, William Irey, is committed to the custody of the Bureau of Prisons to be imprisoned for a term of 210 months.

Upon release from imprisonment, Mr. Irey, you’ll be placed on supervised release for a term of life. The mandatory drug testing requirements of the Violent Crime Control Act are imposed. While on supervised release, you must comply with the standard conditions adopted by this court.

In addition, I’m going to require you to participate in a substance abuse program and to follow your probation officer’s instructions in that regard. You must also participate in a mental health program specializing in sex offender treatment and follow your probation officer’s instructions in that regard as well.

You must register, as appropriate, with any state offender registration agency and cooperate with your probation officer with respect to complying with that directive.

33  I’ll impose the standard terms concerning risk control, that is, no direct contact with minors under 18 without the written approval of your probation officer, prohibition for possessing, subscribing to, viewing any video or magazines, literature otherwise depicting children in the nude or sexually explicit positions. You shall not possess or use a computer with access to any online service without written approval of your probation officer.

Also, I’m going to impose a search requirement, that you submit to a search of your person, residence, place of business or any other area under your control at a reasonable time and in a reasonable manner based on any reasonable suspicion by your probation officer of contraband or evidence violating these terms of supervised release.

You must cooperate with the collection of DNA.

I’m not going to impose a fine. You are ordered, however, to pay a special assessment of $100, which shall be due immediately.

It’s ordered that you shall forfeit to the United States those assets identified in your Plea Agreement that are subject to forfeiture.

As indicated, the Court has imposed a sentence below the applicable guideline sentence for the reasons indicated.

The defendant had no objection to any aspect of the sentence, including the

210-month (17 ½-year) term of imprisonment. On behalf of the United States, the

AUSA objected to the downward variance of 150 months (12 ½ years) as

unreasonable “based on the factors adduced in this record, particularly the

seriousness and long-term nature of the offense.” She characterized the variance

as being “almost half.” The court responded that the sentence was “more like 60

percent of the guideline, not half.”

34  Actually, the sentence of 210 months amounts to 58 percent of the advisory

guidelines sentence of 360 months, or a downward variance of 42 percent from

the guidelines sentence. But, of course, the court could not sentence below the

statutory minimum of 15 years in any event. In light of that, it is also accurate to

say that within the statutorily prescribed range of 15 to 30 years (a spread of 15

years or 180 months), the court imposed a sentence that was 83 percent from the

maximum and only 17 percent above the minimum. As Judge Hill put it, the

district court had “move[d] so far downward from the maximum upper sentencing

limit that he nearly reache[d] the minimum limit.” United States v. Irey, 563 F.3d

1223, 1227 (11th Cir. 2009) (Hill, J., concurring), vacated, 579 F.3d 1207 (11th

Cir. 2009) (en banc).

IV. Our Review of the Reasonableness of the Sentence

The United States appealed, contending that in view of the facts and

circumstances the sentence was unreasonably light, amounting to an abuse of

discretion. A panel of this Court disagreed and affirmed the sentence. Id. After

voting to rehear the case en banc, we directed the parties to brief and argue this

issue: “Is the sentence imposed in this case unreasonable and thereby an abuse of

the district court’s sentencing discretion?”

A. The Scope, Standard, and Importance of Appellate Review

35  1. The Pre-Booker Era

Our review of a sentence that is challenged on substantive grounds is

deferential but still important, as the history of substantive review of federal

sentences indicates. Before the Sentencing Reform Act was enacted in 1984,

there was practically no appellate review of federal sentences, except to ensure

that they did not stray outside of the statutory minimum and maximum. So long

as sentencing judges stayed within the statutory boundaries, they had unbridled

discretion to arrive at any sentence they pleased. See Dorszynski v. United States,

418 U.S. 424, 431–32, 94 S. Ct. 3042, 3047 (1974) (“[O]nce it is determined that

a sentence is within the limitations set forth in the statute under which it is

imposed, appellate review is at an end.”); United States v. Tucker, 404 U.S. 443,

447, 92 S. Ct. 589, 591 (1972) (“[A] sentence imposed by a federal district judge,

if within statutory limits, is generally not subject to review.”). The result,

predictably, was widespread disparity in sentences, a problem that gave rise to a

lot of criticism. See, e.g., S. Rep. No. 98-225, at 38–39 (1983), reprinted in 1984

U.S.C.C.A.N. 3182, 3221–22 (complaining of the “unjustifiably wide range of

sentences” different judges imposed on similarly situated defendants).

One of the leading champions of change was Marvin Frankel, who was

himself a district judge. Frankel described federal sentencing as it then existed as

36 “a non-system in which every judge is a law unto himself or herself and the

sentence a defendant gets depends on the judge he or she gets.” Marvin E.

Frankel, Jail Sentence Reform, N.Y. Times, Jan. 15, 1978, at E21. He proposed a

number of reforms, some of which were similar to what would become the

sentencing guidelines system. See Marvin Frankel, Criminal Sentences: Law

Without Order 113–14 (1972). One of Judge Frankel’s key proposals was that

federal sentences be subject to at least a limited degree of appellate review. See

id. at 75–85. The standard he recommended was abuse of discretion, see id. at

82–84, which he described in these terms:

Correctly understood, the “discretion” of judicial officers in our system is not a blank check for arbitrary fiat. It is an authority, within the law, to weigh and appraise diverse factors (lawfully knowable factors) and make a responsible judgment, undoubtedly with a measure of latitude and finality varying according to the nature and scope of the discretion conferred. But “discretionary” does not mean “unappealable.” Discretion may be abused, and discretionary decisions may be reversed for abuse.

Id. at 84. The goal of the new system, Frankel explained, was “[s]entencing [that]

would be more just. Like cases would tend to be treated alike,” because “[t]he

most fundamental of our legal principles—‘equal justice under law’—demands

that this be so.” Frankel, Jail Sentence Reform, at E21; see also Martin v.

Franklin Capital Corp., 546 U.S. 132, 139, 126 S. Ct. 704, 710 (2005)

(“Discretion is not whim, and limiting discretion according to legal standards

37 helps promote the basic principle of justice that like cases should be decided

alike.”). Frankel and other reformers won the debate, although it took a number

of years to enact the necessary legislation and put the new sentencing system in

place.

The legislation was the Sentencing Reform Act of 1984, whose primary

purpose was to channel district courts’ sentencing discretion and reduce disparity

in sentencing. See Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat.

1987 (codified as amended at 18 U.S.C. §§ 3551–3586 (1988) and 28 U.S.C. §§

991–998 (1988)); Mistretta v. United States, 488 U.S. 361, 364–69, 109 S. Ct.

647, 651–53 (1989) (discussing background to the Sentencing Reform Act and the

guidelines). The Act, which became effective on November 1, 1987, created the

Sentencing Commission and gave it the responsibility to develop a system of

sentencing guidelines.

The sentencing guidelines were binding, and district courts were required to

state reasons for imposing a particular sentence. 18 U.S.C. § 3553(b)–(c). A

court could impose a sentence outside the applicable guidelines range only if it

found the existence of an aggravating or mitigating circumstance “of a kind, or to

a degree, not adequately taken into consideration by the Sentencing Commission

in formulating the guidelines.” Id. § 3553(b)(1). In making such a finding, a

38 sentencing court could consider only the guidelines themselves and the policy

statements and official commentaries of the Sentencing Commission. Id. As the

Supreme Court later noted, departures on this basis were rarely available because

“[i]n most cases, as a matter of law, the Commission will have adequately taken

all relevant factors into account, and no departure will be legally permissible.”

United States v. Booker, 543 U.S. 220, 234, 125 S. Ct. 738, 750 (2005).

Restraints on the exercise of discretion by district courts are enforced

through appellate review, and the Sentencing Reform Act of 1984 provided for it.

18 U.S.C. § 3742. Under the Act, a sentence could be appealed on the ground

that: (1) it was imposed in violation of the law; (2) it was imposed as a result of

an incorrect application of the guidelines; (3) the term of imprisonment, fine, or

supervised release was greater than the maximum or less than the minimum

established in the guidelines range; or (4) it was imposed for an offense for which

there is no sentencing guideline and was “plainly unreasonable.” Id. §

3742(a)–(b).

Departures from the guidelines range were reviewed under the third of the

statutorily listed grounds for appeal, see id. at § 3742(a)(3), (b)(3), and the

resulting sentence was vacated if the appellate court determined that it was

“unreasonable” in light of the factors to be considered in imposing a sentence

39 under § 3553(a) and the district court’s stated reasons for the sentence. See

Booker, 543 U.S. at 261, 125 S. Ct. at 765 (quoting the pre-2003 version of 18

U.S.C. § 3742(e)(3) (1994 ed.)). In conducting its review, the court of appeals

accepted the district court’s findings of fact unless they were clearly erroneous,

which was decided only after giving due regard to that court’s opportunity to

judge the credibility of witnesses. 18 U.S.C. § 3742(e) (1994 ed.). The reviewing

court also gave “due deference” to the district court’s application of the guidelines

to the facts. Id.

The district court’s decision to depart from the guidelines was reviewed for

abuse of discretion in a three-step process. See Koon v. United States, 518 U.S.

81, 98–100, 116 S. Ct. 2035, 2047–48 (1996). First, the court of appeals

deferentially reviewed the district court’s determination of whether the facts of the

case took it outside the “heartland” of the applicable guideline. United States v.

Hoffer, 129 F.3d 1196, 1201 (11th Cir. 1997). A case was outside the heartland

only if there was something unusual, either about the defendant or the

circumstances surrounding the crime, that warranted a different sentence. See

United States v. Miller, 146 F.3d 1281, 1284 (11th Cir. 1998). That determination

was made by comparing the facts of the case to the facts of other cases falling

within the heartland of the guidelines. Id. As the second step in reviewing

40 departure decisions the court of appeals determined for itself whether the

departure factor used by the district court “has been categorically proscribed, is

encouraged, encouraged but taken into consideration within the applicable

guideline, discouraged, or not addressed by the [Sentencing] Commission.”

Hoffer, 129 F.3d at 1201. In the third step the appeals court reviewed with

deference the district court’s finding that the factor on which the departure was

based did exist. Id.

In 2003 Congress amended the sentencing statute to provide for closer

review of sentences that were outside the guidelines. Under the amendments a

sentence could be vacated if the departure from the guidelines range was based on

a factor that: (1) did not advance the objectives of sentencing set forth in §

3553(a)(2); (2) was not authorized under § 3552(b); or (3) was not “justified by

the facts of the case.” 18 U.S.C. § 3742(e)(3)(B); Pub. L. 108-21, § 401(d)(1), 117

Stat. 670. The court of appeals made each of those determinations de novo. Id. §

3742(e); see also United States v. Pressley, 345 F.3d 1205, 1209 n.1 (11th Cir.

2003). The 2003 amendments also specified that a sentence must be vacated if it

departed “to an unreasonable degree” from the guidelines range, in light of the §

3553(a) factors and of the district court’s stated reasons for imposing the

particular sentence. Id. § 3742(e)(3)(C). The result was that an outside-the-

41 guidelines sentence could be vacated if it either was based on an impermissible

factor or the degree of departure was unreasonable. A sentence within a correctly

calculated guidelines range, however, was essentially unreviewable as long as the

district court considered the § 3553(a) factors and explained its reasoning. See id.

§ 3553(c).

The 2003 amendments restricted even further the ability of a district court

to depart downward from the guidelines in cases involving sex crimes against

children. In that type of case a court could depart downward only if it found two

things: (1) the existence of a mitigating circumstance that had been “affirmatively

and specifically identified as a permissible ground of downward departure” by the

sentencing guidelines or policy statements, taking into account any amendments

by Congress; and (2) that mitigating circumstance had not been taken into

consideration by the Sentencing Commission in formulating the guidelines range

for that offense. Id. § 3553(b)(2).

The guidelines themselves also sharply limit the permissible grounds for

downward departure in cases of sexual abuse of children, specifically disallowing

departures based on diminished capacity (U.S.S.G. § 5K2.13), aberrant behavior

(id. § 5K2.20), substance abuse (id. § 5K2.22), or family responsibilities and

community ties (id. § 5H1.6). They provide that generally an offender’s age and

42 health are not relevant, except in rare cases where the offender is so elderly and

infirm that home confinement would be an effective alternative to prison. Id. §§

5H1.1, 5H1.4. The guidelines also provide that charitable contributions and a

defendant’s mental and emotional condition generally are not appropriate grounds

for departure. Id. §§ 5H1.11, 5H1.3.

2. The Booker Era

Then came the Booker decision in 2005. In it the Supreme Court held the

sentencing statute unconstitutional insofar as the guidelines were mandatory and

to the extent that they allowed the upper limits of the sentence to depend on facts

that had not been established by a plea of guilty or proven to a jury beyond a

reasonable doubt. Booker, 543 U.S. at 244, 125 S. Ct. at 756. Instead of striking

down the entire guidelines system, the Court salvaged much of it by making the

guidelines advisory rather than mandatory. Id. at 245, 125 S. Ct. at 756–57. The

salvage work required the Court to sever and excise two provisions of the Act: (1)

§ 3553(b)(1), which had required the district court to impose a sentence within the

guidelines range; and (2) § 3742(e), which had set forth the scope and standard of

review of sentences. Id. at 259, 125 S. Ct. at 764. The excision of § 3742(e) left a

gap: § 3742 still created appellate jurisdiction for sentencing review, but with

subsection (e) gone it no longer specified the standard of review.

43  The Supreme Court filled that gap by inferring a standard of review from

“related statutory language, the structure of the statute, and the sound

administration of justice.” Id. at 260–61, 125 S. Ct. at 765 (quotation marks

omitted). Those considerations, as well as “the past two decades of appellate

practice in cases involving departures,” implied “a practical standard of review

already familiar to appellate courts: review for unreasonableness.” Id. (brackets

omitted); see 18 U.S.C. § 3472(e)(3) (1994 ed.).12 The Court reasoned that

appellate courts had ample experience applying the “reasonableness” standard to

sentences outside the guidelines range before the 2003 amendments and to

sentences for offenses not addressed by the guidelines. Booker, 543 U.S. at 262,

125 S. Ct. at 766. The Booker Court saw appellate review of sentences as

important to the new system, because it “would tend to iron out sentencing

differences,” avoiding undue disparity. Id. at 263, 125 S. Ct. at 767.

Section 3553(a) plays a critical role in appellate review of sentences, just as

it does in the initial sentencing decision. Booker instructs us that not only must

district courts apply the § 3553(a) factors in making their sentencing decisions,

12 The “related statutory language” and “the two decades of appellate practice” the Supreme Court drew from did not include provisions added by the 2003 amendments or experience under them. Because the purpose and effect of those amendments had been “to make Guidelines sentencing even more mandatory than it had been,” the amendments were tossed onto the legislation scrap pile with the comment that “the reasons for [them] have ceased to be relevant.” Booker, 543 U.S. at 261, 125 S. Ct. at 765.

44 but courts of appeals also must apply those same factors in determining whether a

sentence is reasonable. Id. at 261, 125 S. Ct. at 766 (“Those factors in turn will

guide appellate courts, as they have in the past, in determining whether a sentence

is unreasonable.”); accord United States v. Pugh, 515 F.3d 1179, 1188 (11th Cir.

2008) (“Booker further held that in performing this review, we must measure

‘reasonableness’ against the factors outlined by Congress in 18 U.S.C. §

3553(a).”); United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per

curiam) (“We must evaluate whether the sentence imposed by the district court

fails to achieve the purposes of sentencing as stated in section 3553(a).”).13

13 Section 3553(a) reads in its entirety:

(a) Factors to be considered in imposing a sentence.--The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

45  Read in light of earlier decisions, the “reasonableness” standard Booker

adopted entails review for abuse of discretion that accords “substantial deference”

to the district court’s sentencing decisions. Koon, 518 U.S. at 97–99, 116 S. Ct. at

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

46 2046–47. Pre-Booker decisional law, of course, only applied the reasonableness

standard to sentences that departed from the guidelines range or to sentences for

offenses not addressed in the guidelines. See id. at 98–99, 116 S. Ct. at 2046–47.

After Booker, the abuse of discretion standard outlined in Koon applies more

broadly to the district judge’s sentence decision, whether the sentence is within or

without the guidelines range. See Rita, 551 U.S. at 364, 127 S. Ct. at 2472

(Stevens, J., concurring).

Two years after Booker, the Supreme Court addressed in greater detail the

sentence review function of a court of appeals, leaving no doubt about the

importance of that function. See Rita, 551 U.S. 338, 127 S. Ct. 2456. As we

pointed out at the beginning of this opinion, the opening line of the Rita opinion

categorically states that courts of appeals are to “review federal sentences and set

aside those they find ‘unreasonable.’” Id. at 341, 127 S. Ct. at 2459. And later in

the Rita opinion the Supreme Court explains that, in the world according to

Booker, courts of appeals exist to correct substantively unreasonable sentences

imposed by the district courts. Id. at 354, 127 S. Ct. at 2466–67.

The specific holding of Rita is that a court of appeals may presume that a

sentence within the guidelines range is reasonable. Id. at 347, 127 S. Ct. at 2462.

The Supreme Court believed that such a presumption simply reflects the fact that

47 when both the sentencing judge and the Sentencing Commission have reached the

same conclusion as to the proper sentence, it “significantly increases” the

likelihood that the sentence is reasonable. Id., 127 S. Ct. at 2463. After all, the

Court explained, Congress directed both the Sentencing Commission and the

sentencing judge to carry out the same basic § 3553(a) objectives; the guidelines

themselves reflect application of the § 3553(a) factors, and so should the district

court’s sentencing decision. Id. at 347–48, 127 S. Ct. at 2463. It follows that

when a particular sentence is consistent with the guidelines’ application of the §

3553(a) factors in the “mine run” of cases, it is “probable” that the sentence is

reasonable. Id. at 351, 127 S. Ct. at 2465. If the sentence is not consistent with

the guidelines that same probability does not exist, although the reviewing court

may not presume a sentence that is outside the guidelines is unreasonable, id. at

354–55, 127 S. Ct. at 2467.

The decision in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586 (2007),

illustrates the importance of all the facts and circumstances to the reasonableness

of the sentence. As a sophomore in college Gall had participated in a conspiracy

to distribute ecstasy. Id. at 41, 128 S. Ct. at 591–92. His role was limited to

delivering drugs between conspirators. Id., 128 S. Ct. at 592. Later Gall

voluntarily stopped using drugs himself, and seven months after joining the

48 conspiracy he withdrew from it and told the others he was quitting. Id. Drug free,

Gall graduated from college and became a master carpenter. Id. at 41–42, 128 S.

Ct. at 592. Two years after withdrawing from the conspiracy, Gall was questioned

by federal agents and admitted his participation. Id. Three and a half years after

he had withdrawn from the conspiracy and turned his life around, Gall was

indicted for conspiracy to distribute illegal drugs. Id. He pleaded guilty. Id. His

co-conspirators, who had not withdrawn from the conspiracy, received sentences

ranging from 30 to 36 months. Id. at 54–55, 128 S. Ct. at 599–600.

Gall’s guidelines range was 30 to 37 months. Id. at 43, 128 S. Ct. at 593.

The district court varied downward from that range to a sentence of probation,

largely because Gall had been young and immature when he committed the crime,

he had withdrawn from the conspiracy years before the charges were filed, and he

had made something of himself. Id. at 43–44, 128 S. Ct. at 593. When the

government argued for a guidelines range sentence on the ground that the three

co-conspirators had received sentences in that range, the district court noted that,

unlike Gall, the other conspirators had continued with the conspiracy. Id. at

54–55, 128 S. Ct. at 599–600.

The court of appeals vacated the probationary sentence as unreasonable,

concluding that the district court had erred by giving too much weight to Gall’s

49 voluntary withdrawal, his age at the time of the offense, and his post-offense

rehabilitation, and too little consideration to the need to avoid unwarranted

sentence disparities. Id. at 45, 128 S. Ct. at 594. The Supreme Court reversed that

decision after discussing at some length “the unique facts of Gall’s situation.” Id.

at 54, 128 S. Ct. at 599.

In doing so, the Court reiterated that all sentences, whether within or

without the guidelines, are to be reviewed only for reasonableness under an abuse

of discretion standard. Id. at 46, 128 S. Ct. at 594. It rejected any requirement

that an outside-the-guidelines sentence must be justified by “extraordinary”

circumstances, and rejected any “rigid mathematical formula” that uses the

percentage of departure as the standard for determining the strength of

justification required for a specific sentence. Id. at 47, 128 S. Ct. at 595. At the

same time, however, the Court said that the sentencing court must give “serious

consideration” to the extent of any departure from the guidelines, and must offer

“sufficient justifications” for its conclusion that an unusually harsh or light

sentence is appropriate. Id. at 46, 128 S. Ct. at 594. That means, the Court

explained, that the justification for the deviation from the guidelines range must

be “sufficiently compelling to support the degree of the variance.” Id. at 50, 128

S. Ct. at 597.

50  About appellate review, the Supreme Court held in Gall that “[i]n reviewing

the reasonableness of a sentence outside the Guidelines range, appellate courts

may therefore take the degree of variance into account and consider the extent of a

deviation from the Guidelines,” in addition to the sentencing court’s justifications.

Id. at 47, 128 S. Ct. at 594–95. While rigid mathematical formulas and

proportionality tests cannot be used, the Court concluded that “the extent of the

difference between a particular sentence and the recommended Guidelines range

is surely relevant,” id. at 41, 128 S. Ct. at 591, and that “a major departure should

be supported by a more significant justification than a minor one.” Id. at 50, 128

S. Ct. at 597.14 In other words, the justification for the variance must be

“sufficiently compelling to support the degree of the variance.” Id. Checking to

see that the justification is sufficiently compelling remains the duty of the court of

appeals. At the same time, the appellate court may not presume that a sentence

outside the guidelines is unreasonable and must give “due deference to the district

14 The difficulty of the distinction that the Supreme Court drew in this regard has not gone unnoticed. See, e.g., United States v. Levinson, 543 F.3d 190, 197 n.6 (3d Cir. 2008) (noting “[a]s an example of the challenge” in post-Booker sentence review the “somewhat mixed messages that can be drawn” from Gall’s statement ruling out proportionality but embracing the requirement of a greater justification for major variances); see also United States v. Feemster, 572 F.3d 455, 467 (8th Cir. 2009) (Colloton, J., concurring) (after Gall, “one searches in vain for a principled basis on which to conduct a consistent and coherent appellate review for reasonableness”); United States v. Evans, 526 F.3d 155, 168 (4th Cir. 2008) (Gregory, J., concurring) (“I must conclude that the Court has left the specifics of how appellate courts are to conduct substantive reasonableness review, charitably speaking, unclear.”).

51 court’s decision that the § 3553(a) factors, on a whole, justify the extent of the

variance.” Id. at 51, 128 S. Ct. at 597. The fact that the court of appeals “might

reasonably have concluded that a different sentence was appropriate” is not

sufficient to justify reversal. Id.; see also Talley, 431 F.3d at 788 (“A district

court may impose a sentence that is either more severe or lenient than the sentence

we would have imposed, but that sentence must still be reasonable.”).

In Gall’s case the court of appeals erred by giving “virtually no deference”

to the district court’s decision that a significant variance from the guidelines was

justified. Gall, 552 U.S. at 56, 128 S. Ct. at 600. The Supreme Court decided that

it was entirely reasonable for the district court to give substantial weight to Gall’s

voluntary withdrawal. Unlike all his co-defendants and “the vast majority of

defendants convicted of conspiracy in federal court,” Gall’s efforts at self-

rehabilitation began long before he got caught, which gave the district court

“greater justification for believing Gall’s turnaround was genuine.” Id. at 56–57,

128 S. Ct. at 600–01. It was also reasonable for the district court to conclude that

a guidelines range sentence for Gall would have created unwarranted sentencing

disparities, because his co-conspirators who were sentenced within the guidelines

had not voluntarily withdrawn from the conspiracy and had not shown any

comparable rehabilitation. Id. at 55–56, 128 S. Ct. at 600; see also Lyes v. City of

52 Riviera Beach, 166 F.3d 1332, 1342 (11th Cir. 1999) (en banc) (“[I]t is worth

noting that equal treatment consists not only of treating like things alike, but also

of treating unlike things differently according to their differences.”). The district

court reasonably concluded that under the unusual facts of that case the § 3553(a)

factors “on the whole” justified the below-the-guidelines sentence it imposed on

Gall. Gall, 552 U.S. at 59–60, 128 S. Ct. at 602.

The same day that Gall was released the Supreme Court also issued its

decision in Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007),

which involved sentencing for an “unremarkable drug-trafficking offense” and an

unremarkable firearm possession offense, id. at 110, 128 S. Ct. at 575. Thanks in

large part to the much-criticized 100 to 1 crack/powder cocaine disparity in the

guidelines, the bottom of the advisory range for the combined charges was 19

years. Id. at 92, 128 S. Ct. at 565. After considering all of the § 3553(a) factors

and the strong upward influence of the crack/powder disparity on the guidelines

range, the district court concluded that a 19-year sentence would have been greater

than necessary to accomplish the purposes of sentencing set forth in § 3553(a). Id.

at 92–93, 128 S. Ct. at 565. For that reason, it varied downward to a sentence of

15 years. Id. at 93, 128 S. Ct. at 565.

The government appealed the sentence and the Fourth Circuit reversed

53 solely because of its view that a variance based on disagreement with the

crack/powder ratio in the guidelines was per se unreasonable. Id. After the

Supreme Court granted review, the government argued against the variance on

that same ground. Id. at 101–07, 128 S. Ct. at 570–74. It asserted that while the

guidelines are usually only advisory, the 100 to 1 crack/powder ratio guidelines

were an exception because Congress had directed sentencing courts to follow that

ratio. Id. at 101–02, 128 S. Ct. at 570. The government’s position, in essence,

was that the crack/powder ratio in the offense level part of the guidelines was a

little pocket of mandatoriness in an otherwise advisory system.

The Supreme Court rejected that position, disagreeing with all of the

government’s arguments that Congress had required the Sentencing Commission

and sentencing courts to follow the 100 to 1 ratio in every case. Id. at 102–11,

128 S. Ct. at 570–76. The government did not contend that the below-the-

guidelines sentence was unreasonable for any other reason, and the Court found

that it was reasonable. Id. at 110–11, 128 S. Ct. at 575–76; see also Spears v.

United States, — U.S. —, 129 S. Ct. 840, 843–44 (2009) (per curiam) (clarifying

that Kimbrough means “district courts are entitled to reject and vary categorically

from the crack-cocaine Guidelines based on a policy disagreement with those

Guidelines”).

54  The Kimbrough decision involved a specific part of the guidelines, the one

involving the peculiar crack/powder disparity, which the Sentencing Commission

itself had consistently and emphatically criticized as at odds with the goals behind

§ 3553(a). See Kimbrough, 552 U.S. at 111, 128 S. Ct. at 576; see also Pugh, 515

F.3d at 1189 n.7 (“Kimbrough primarily involved issues related to the guidelines

for crack cocaine offenses.”). The Supreme Court’s opinion in that case, however,

also contains a number of observations of broader application. For example, the

Court discussed “the discrete institutional strengths” of sentencing courts and the

Sentencing Commission, and how those different strengths affect the amount of

respect due a court’s decision to vary from the guidelines range. Kimbrough, 552

U.S. at 109, 128 S. Ct. at 574–75. It said that decisions to vary “may attract

greatest respect when the sentencing judge finds a particular case outside the

heartland to which the Commission intends individual Guidelines to apply.” Id. at

109, 128 S. Ct. at 574–75 (quotation marks omitted). By contrast, “closer review

may be in order when the sentencing judge varies from the Guidelines based

solely on the judge’s view that the Guidelines range fails properly to reflect §

3553(a) considerations even in a mine-run case.” Id., 128 S. Ct. at 575 (quotation

marks omitted). The Court in Kimbrough also reiterated the importance of

appellate review of sentences for substantive reasonableness. See id. at 107–08,

55 128 S. Ct. at 573–74 (explaining that appellate review along with the ongoing

revision of the guidelines “will help to avoid excessive sentencing disparities” and

variations among district courts).

3. The Abuse of Discretion Standard

Since the Supreme Court’s Booker decision it has been “pellucidly clear

that the familiar abuse-of-discretion standard of review now applies to appellate

review of sentencing decisions.” Gall, 552 U.S. at 46, 128 S. Ct. at 594; see also

Pugh, 515 F.3d at 1191 (explaining that the Supreme Court’s teachings “leave no

doubt that an appellate court may still overturn a substantively unreasonable

sentence, albeit only after examining it through the prism of abuse of discretion,

and that appellate review has not been extinguished”). That familiar standard

“allows a range of choice for the district court, so long as that choice does not

constitute a clear error of judgment.” United States v. Frazier, 387 F.3d 1244,

1259 (11th Cir. 2004) (en banc) (quotation marks omitted) (quoting Rasbury v.

I.R.S., 24 F.3d 159, 168 (11th Cir. 1994)). As we have explained, “under the

abuse of discretion standard of review there will be occasions in which we affirm

the district court even though we would have gone the other way had it been our

call. That is how an abuse of discretion standard differs from a de novo standard

of review.” Id. (quoting Rasbury, 24 F.3d at 168); see also, e.g., Ledford v.

56 Peeples, 605 F.3d 871, 922 (11th Cir. 2010) (“[T]he relevant question [when

reviewing for abuse of discretion] is not whether we would have come to the same

decision if deciding the issue in the first instance. The relevant inquiry, rather, is

whether the district court’s decision was tenable, or, we might say, ‘in the

ballpark’ of permissible outcomes.”).

“A district court abuses its discretion when it (1) fails to afford

consideration to relevant factors that were due significant weight, (2) gives

significant weight to an improper or irrelevant factor, or (3) commits a clear error

of judgment in considering the proper factors.” United States v. Campa, 459 F.3d

1121, 1174 (11th Cir. 2006) (en banc). As for the third way that discretion can be

abused, a district court commits a clear error of judgment when it considers the

proper factors but balances them unreasonably. See Ameritas Variable Life Ins.

Co. v. Roach, 411 F.3d 1328, 1330 (11th Cir. 2005) (“[A]n abuse of discretion can

occur . . . when all proper factors, and no improper ones, are considered, but the

court, in weighing those factors, commits a clear error of judgment.” (emphasis

added) (quotation marks omitted)). The principle that discretion can be abused by

unreasonably balancing proper factors is solidly established in Supreme Court

precedent and our circuit law. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S.

235, 257, 102 S. Ct. 252, 266 (1981) (“The forum non conveniens determination

57 is committed to the sound discretion of the trial court. It may be reversed only

when there has been a clear abuse of discretion; where the court has considered all

relevant public and private interest factors, and where its balancing of these

factors is reasonable, its decision deserves substantial deference.” (emphasis

added)); Ford v. Brown, 319 F.3d 1302, 1308 (11th Cir. 2003) (“We conclude that

the district court overlooked some highly relevant factors, and that it ultimately

struck a balance that was an abuse of discretion.”).

In the context of sentencing, the proper factors are set out in 18 U.S.C. §

3553(a), and a district court commits a clear error in judgment when it weighs

those factors unreasonably, arriving at a sentence that does not “achieve the

purposes of sentencing as stated in § 3553(a).” Pugh, 515 F.3d at 1191 (quoting

Talley, 431 F.3d at 788 (quotation marks omitted)). In order to determine whether

that has occurred, we are “required to make the [sentencing] calculus ourselves”

and to review each step the district court took in making it. Id.; see also Booker,

543 U.S. at 261, 125 S. Ct. at 766 (“Those [§ 3553(a)] factors in turn will guide

appellate courts, as they have in the past, in determining whether a sentence is

unreasonable.”); Pugh, 515 F.3d at 1194 (“Indeed, we could not begin to review

the reasonableness of a sentence without examining all of the relevant factors

embodied in Section 3553(a).”).

58  In reviewing the reasonableness of a sentence, we must, as the Supreme

Court has instructed us, consider the totality of the facts and circumstances. Pugh,

515 F.3d at 1192 (unreasonableness of sentence depends “on an examination of

the ‘totality of the circumstances’” (quoting Gall, 552 U.S. at 51, 128 S. Ct. at

597)). To the extent that the district court has found facts, we accept them unless

they are clearly erroneous. Id. At the same time we can and should consider

“additional salient facts that were elicited, and uncontroverted.” Id. The

difference is between contradicting a factfinding, on the one hand, and ignoring

uncontroverted facts that the district court failed to mention on the other. That

difference is important because a district court cannot write out of the record

undisputed facts by simply ignoring them. The failure to mention facts may well

reflect the district court’s judgment that those facts are not important, but the

importance of facts in light of the § 3553(a) factors is not itself a question of fact

but instead is an issue of law. See United States v. Taylor, 487 U.S. 326, 337, 108

S. Ct. 2413, 2419–20 (1988) (“Factual findings of a district court are, of course,

entitled to substantial deference and will be reversed only for clear error. A

judgment that must be arrived at by considering and applying statutory criteria,

however, constitutes the application of law to fact and requires the reviewing

court to undertake more substantive scrutiny to ensure that the judgment is

59 supported in terms of the factors identified in the statute.” (citations omitted)).15

After performing the required analysis, we are to vacate the sentence if, but

only if, we “are left with the definite and firm conviction that the district court

committed a clear error of judgment in weighing the § 3553(a) factors by arriving

at a sentence that lies outside the range of reasonable sentences dictated by the

facts of the case.” Pugh, 515 F.3d at 1191 (quotation marks omitted); accord

United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009); United States v.

McBride, 511 F.3d 1293, 1297–98 (11th Cir. 2007); United States v. Clay, 483

F.3d 739, 743 (11th Cir. 2007). We are not often “left with [that] definite and

firm conviction” because, as we have explained, our examination of the sentence

is made “through the prism of abuse of discretion.” Pugh, 515 F.3d at 1191. But

15 Judge Tjoflat’s separate opinion asserts that it is “deconstructing” the abuse of discretion standard. Concurring and Dissenting Op. of Tjoflat, J. (hereafter “Separate Op. of Tjoflat, J.”), at 193; see also id. at 188. It is deconstruction with a wrecking ball. According to that opinion, the weight given to each piece of evidence is a factfinding, id. at 189; the degree of seriousness of an offense is a factfinding, id. at 189 n.59; the importance given to each factor is a factfinding, id. at 190 n.61; the sentence necessary to satisfy each § 3553(a)(2) purpose is a factfinding, id. at 189; in other words, everything that goes into a sentence is a factfinding subject only to clearly erroneous review. To the contrary, the Supreme Court has applied the abuse of discretion standard to the weight the sentencing court has given to the evidence and the importance it has given to the § 3553(a) factors. See Gall, 552 U.S. at 57, 128 S. Ct. at 600. Many of the “factfindings” Judge Tjoflat’s separate opinion identifies are actually applications of statutory law to facts, resulting in a determination that we review for abuse of discretion when considering whether “the § 3553(a) factors, on the whole, justif[y] the sentence” a district court has imposed. Id. at 60, 128 S. Ct. at 602. A sentencing decision is a classic “judgment that must be arrived at by considering and applying statutory criteria,” which “requires the reviewing court to undertake more substantive scrutiny to ensure that the judgment is supported in terms of the factors identified in the statute.” Taylor, 487 U.S. at 337, 108 S. Ct. 2413, at 2419–20. And, contrary to Judge Tjoflat’s opinion, our recognition of the fact that statutory criteria are at play does not mean that we are reviewing de novo the district court’s balancing of those criteria.

60 sometimes we are. See United States v. Livesay, 587 F.3d 1274, 1278–79 (11th

Cir. 2009) (vacating as “patently unreasonable” a sentence of probation for

participant in billion-dollar fraud scheme and holding that only a “meaningful

period of incarceration” would fulfill the goals of sentencing under § 3553(a));

Pugh, 515 F.3d at 1188–94 (vacating as substantively unreasonable a sentence of

probation for receiving and distributing child pornography); United States v.

Martin, 455 F.3d 1227, 1238–39 (11th Cir. 2006) (vacating a seven-day sentence

for billion-dollar securities fraud as “shockingly short” and “wildly

disproportionate” to the seriousness of the offense, even though the defendant had

rendered substantial assistance that was extraordinary); United States v. Crisp, 454

F.3d 1285, 1290 (11th Cir. 2006) (vacating as “outside the range of

reasonableness” a sentence of five hours’ imprisonment for bank fraud even

though the defendant had provided substantial assistance that was crucial in the

prosecution of his co-defendant). Out of the hundreds of sentences that we have

reviewed up to this point in the five years since the Booker decision, those are the

only four we have found to be substantively unreasonable.

Looking at sentencing decisions through the prism of discretion is not the

same thing as turning a blind eye to unreasonable ones. And, as we said in Pugh,

“the district court’s choice of sentence is not unfettered.” Id. The fetters on a

61 district court’s sentencing discretion are the requirement of reasonableness and the

existence of appellate review to enforce that requirement. While those fetters are

loosened by the substantial discretion we afford district courts in sentencing, at the

boundaries of reasonableness the fetters do fetter. See Frankel, Criminal

Sentences 84 (“‘[D]iscretionary’ does not mean ‘unappealable.’ Discretion may

be abused, and discretionary decisions may be reversed for abuse.”); cf.

Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S. Ct. 2362, 2371 (1975)

(“That the court’s discretion is equitable in nature hardly means that it is

unfettered by meaningful standards or shielded from thorough appellate review.”

(citation omitted)).16

We may not—it bears repeating—set aside a sentence merely because we

would have decided that another one is more appropriate. Gall, 552 U.S. at 51,

128 S. Ct. at 597. See generally Frazier, 387 F.3d at 1259; Ledford, 605 F.3d at

922. A district court’s sentence need not be the most appropriate one, it need only

be a reasonable one. We may set aside a sentence only if we determine, after

giving a full measure of deference to the sentencing judge, that the sentence

16 Although the burden of persuasion may not be decisive in many cases, it is on the party attacking the sentence as unreasonable. Pugh, 513 F.3d at 1189; Martin, 455 F.3d at 1237; Talley, 431 F.3d at 788. The burden being there tends to reinforce the discretionary zone in which the district court acts when it decides on an appropriate sentence, but that zone is neither limitless nor impervious to review.

62 imposed truly is unreasonable.17

Judge Edmondson’s dissenting opinion argues that in reviewing a sentence

for substantive reasonableness we may not decide whether the district court placed

unreasonable weight on any of the § 3553(a) factors. See Dissenting Op. of

Edmondson, J., at 241 (“[T]o grant something in the record more or less value

than the District Judge did and so to conclude that the record overall weighs more

heavily for a higher sentence . . . oversteps [appellate] authority.”). We disagree

for several reasons.

First, the only authority the dissenting opinion cites for that proposition is

Gall, which actually contradicts it. The Supreme Court decided that Gall’s

sentence was reasonable only after reviewing the weight the district court had

assigned to various factors as well as its decision that the § 3553(a) factors, as a

whole, justified the sentence. See Gall, 552 U.S. at 56–60, 128 S. Ct. at 600–02.

It stated that the district court “quite reasonably attached great weight to the fact

that Gall voluntarily withdrew from the conspiracy after deciding, on his own

17 Some of our colleagues take the position that by finding the sentence in this case unreasonable we are simply disagreeing with the district judge’s decision and substituting our own view of a proper sentence for his. See Dissenting Op. of Barkett, J., at 254; Dissenting Op. of Edmondson, J., at 241, 249; Separate Op. of Tjoflat, J., at 217–21. Of course, the fact that we find the district court’s sentence unreasonable necessarily means that we disagree with it. That is true in every instance in which an appellate court finds a sentence substantively unreasonable. If the appellate court agreed with a sentence it would not find the sentence unreasonable, so it is illogical to suggest that disagreement with a sentence somehow means that an appellate court is not properly carrying out its duty to review the reasonableness of the sentence.

63 initiative, to change his life,” which “len[t] strong support to the District Court’s

conclusion that Gall is not going to return to criminal behavior and is not a danger

to society.” Id. at 57, 128 S. Ct. at 601. The Court also stated that the district

court “quite reasonably attached great weight to Gall’s self-motivated

rehabilitation, which . . . lends strong support to the conclusion that imprisonment

was not necessary to deter Gall from engaging in future criminal conduct or to

protect the public from his future criminal acts.” Id. at 59, 128 S. Ct. at 602.18 If

appellate review did not extend to the weight placed on a § 3553(a) factor—as

Judge Edmondson’s dissenting opinion contends—those statements in Gall would

make no sense.19

18 Judge Tjoflat’s separate opinion argues that we are disregarding Gall, an argument that is based on his reading of that decision to mean that appellate review of the weight put on the various § 3553(a) factors by the sentencing court is necessarily akin to de novo review of sentencing, which we may not undertake. See Separate Op. of Tjoflat, J., at 218 (asserting that one reason for the Supreme Court’s conclusion in Gall that the Eighth Circuit’s analysis “more closely resembled de novo review” than abuse of discretion review was that the court of appeals decided that the sentencing court “gave too much weight to Gall’s withdrawal from the conspiracy” (citation omitted)). That reading of Gall, however, is a misreading of the decision, which actually confirms that appellate courts, with the proper measure of deference, should review the reasonableness of the weight placed on a § 3553(a) factor by the sentencing court. See Gall, 552 U.S. 56–57, 128 S. Ct. at 600–01. The Eighth Circuit’s mistake was not that it had reviewed the district court’s weighing of the statutory factors, but that in doing so it had asked the wrong question—whether “in its view” the sentence was appropriate—instead of whether the district court’s weighing and the resulting sentence were reasonable. Id. at 56, 128 S. Ct. at 600. 19 If an appellate court could not review the reasonableness of the weight the district court placed on a factor—if all that mattered was correct factfindings and accurate recitation of the applicable law—many of the Supreme Court’s other statements in its Booker-through- Kimbrough decisions also would have little or no purpose. See, e.g., Gall, 552 U.S. at 47, 128 S. Ct. at 594–95 (“In reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts may therefore take the degree of variance into account and consider the extent of

64  Second, the position that Judge Edmondson’s dissenting opinion takes is

inconsistent with the familiar abuse of discretion standard that the Supreme Court

has told us to apply. As we have already explained, a district court commits a

clear error of judgment, abuses its discretion, when it considers the proper factors

but balances them unreasonably. See Piper Aircraft Co., 454 U.S. at 257, 102 S.

Ct. at 266; Campa, 459 F.3d at 1174; Ameritas Variable Life Ins., 411 F.3d at

1330; Ford, 319 F.3d at 1308. One purpose of reasonableness review is to correct

those errors. If the weight given various factors could not be reviewed on appeal,

there would be no way to serve that purpose. If appellate courts were limited to

determining whether proper procedures were followed and whether factfindings

are clearly erroneous, there would be no substantive review, only procedural

review. See Gall, 552 U.S. at 51, 128 S. Ct. at 597 (defining procedural review to

include a determination of whether the sentence was based on clearly erroneous

facts). We would be back to “a non-system in which every judge is a law unto

himself or herself.” Frankel, Jail Sentence Reform, at E21.

Third, the position that the weight a sentencing court gives to the § 3553(a)

a deviation from the Guidelines.”); Booker, 543 U.S. at 261, 125 S. Ct. at 766 (“Those [§ 3553(a)] factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.”); Kimbrough, 552 U.S. at 107–08, 128 S. Ct. at 573–74 (explaining that appellate review for reasonableness will help avoid excessive sentencing disparities). And there would have been no point at all in the Rita decision, which held that we may presume a sentence within the guidelines is reasonable. 551 U.S. at 347, 127 S. Ct. at 2462.

65 factors may not be reviewed has been rejected not only by this Court but also by

all of our sister circuits that have addressed the issue. See United States v.

Russell, 600 F.3d 631, 633 (D.C. Cir. 2010) (“Substantive reasonableness is the

catch-all criterion under which the reviewing court monitors (deferentially—for

abuse of discretion) whether the district court has given reasonable weight to all

the factors required to be considered.”); United States v. Ressam, 593 F.3d 1095,

1031–32 (9th Cir. 2010) (“[I]t appears that the district court abused its discretion

in weighing the relevant factors by giving too much weight to [the defendant’s]

cooperation and not enough weight to the other relevant § 3553(a) factors,

including the need to protect the public.”); United States v. Camiscione, 591 F.3d

823, 834 (6th Cir. 2010) (“General deterrence is one of the key purposes of

sentencing, and the district court abused its discretion when it failed to give that

matter its proper weight.” (quotation and other marks omitted)); United States v.

Sayad, 589 F.3d 1110, 1118 (10th Cir. 2009) (“Unlike procedural reasonableness

review, which focuses on the permissibility of relying on a particular factor,

substantive reasonableness review broadly looks to whether the district court

abused its discretion in weighing permissible § 3553(a) factors in light of the

‘totality of the circumstances.’” (quotation marks omitted)); United States v.

Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (stating that a sentence is substantively

66 unreasonable if it “does not account for a factor that should receive significant

weight, it gives significant weight to an irrelevant or improper factor, or it

represents a clear error of judgment in balancing sentencing factors”); United

States v. Moore, 565 F.3d 435, 438 (8th Cir. 2009) (“We may find an abuse of

discretion where the sentencing court fails to consider a relevant factor that should

have received significant weight, gives significant weight to an improper or

irrelevant factor, or considers only the appropriate factors but commits a clear

error of judgment in weighing those factors.” (quotation marks omitted)); United

States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en banc) (“At the substantive

stage of reasonableness review, an appellate court may consider whether a factor

relied on by a sentencing court can bear the weight assigned to it.”); United States

v. Goff, 501 F.3d 250, 261 (3d Cir. 2007) (“[D]eterring the production of child

pornography and protecting the children who are victimized by it are factors that

should have been given significant weight at sentencing . . . .”); United States v.

Hampton, 441 F.3d 284, 288–89 (4th Cir. 2006) (vacating sentence as

substantively unreasonable because the district court gave “excessive weight” to

one statutory factor and failed to account for others); see also Torres-Rivera v.

O’Neill-Cancel, 524 F.3d 331, 335–36 (1st Cir. 2008) (stating that, in general,

abuse of discretion may occur if the court “fails to consider a significant factor in

67 the decisional calculus, if it relies on an improper factor in working that calculus,

or if it considers all the appropriate factors but makes a serious error in judgment

as to their relative weight.”). We join those circuits in reaffirming that substantive

review exists, in substantial part, to correct sentences that are based on

unreasonable weighing decisions. If we accepted the position set out in Judge

Edmondson’s dissenting opinion, we would be the only circuit to do so.20

B. The Adequacy of the Sentence Findings and Explanation

Judge Tjoflat’s separate opinion criticizes the district court for not making

more detailed sentence findings and not offering a better explanation for the

sentence it imposed. Separate Op. of Tjoflat, J., at 199, 212–14. Irey’s sentence,

according to that separate opinion, is unreasonable because the district court failed

to make “intelligible” and “specific” findings on the § 3553(a)(2)(A) factors, and

because it did not “explicitly” weigh those factors. Id. at 212–13. About that

criticism, we have four things to say. First of all, the adequacy of a district court’s

findings and sentence explanation is a classic procedural issue, not a substantive

20 Each of the circuits we have cited has determined, at least implicitly, that the weight given each § 3553(a) factor may be reviewed in a principled fashion, and we agree. Even though “the appropriate weight given to each of the [§ 3553(a)] factors cannot be calibrated with a slide rule,” Pugh, 515 F.3d at 1203, that does not mean appellate review of that weight is impossible; it only reinforces the deferential nature of the review. As we have emphasized, there is “a difference between deference and abdication.” Crisp, 454 F.3d at 1290. If there were no difference, if we did not have a meaningful role to play, we would never have set aside any sentences as substantively unreasonable, but we have.

68 one. See Gall, 552 U.S. at 51, 128 S. Ct. at 597 (explaining that “failing to

consider the § 3553(a) factors, . . . or failing to adequately explain the chosen

sentence,” constitutes procedural error); United States v. Ellisor, 522 F.3d 1255,

1273 (11th Cir. 2008) (Tjoflat, J.). And in this case no one has ever argued that

the district court committed any procedural error in sentencing. That possibility

was not mentioned by either party in the district court, or in their briefs to the

panel, or in the oral argument before the panel, or in the panel’s opinion (which

Judge Tjoflat joined), or in the en banc briefing instructions, or by the parties in

their briefs to us, or at oral argument before us, or anywhere else at all until it

emerged in Judge Tjoflat’s separate opinion. The issue in this appeal has never

been procedural reasonableness, but instead substantive reasonableness. Judge

Tjoflat’s opinion, although purporting to recognize that Irey’s sentence cannot be

vacated on procedural grounds, dresses up its own procedural objections to the

sentence as substantive ones. No amount of rhetorical couture, however, can

cover up the fact that the opinion really is complaining about the procedural

unreasonableness of the sentence, an issue that is not before us.

Second, even if that issue were before us, the district court was not required

to make any more detailed findings or give a more thorough explanation than it

did. In Rita the Supreme Court upheld the adequacy of a “sentencing judge’s

69 statement of reasons [which] was brief but legally sufficient.” 551 U.S. at 358,

127 S. Ct. at 2469. It did so because the record showed that the judge listened to

the evidence and arguments and was aware of the various factors the defendant

put forward for a lesser sentence. Id. In sentencing the defendant the judge did

not say much, and the Court acknowledged that he “might have said more,” but it

surmised that “[h]e must have believed that there was not much more to say.” Id.

Although the judge did not even state that he had considered the evidence and

argument or why he rejected the arguments for a variance, it was enough that “the

context and record” indicated the reasoning behind his conclusion. Id. at 359, 127

S. Ct. at 2469. No member of this Court has ever before indicated that a

sentencing judge is required to articulate his findings and reasoning with great

detail or in any detail for that matter. See, e.g., United States v. Sanchez, 586 F.3d

918, 935–36 (11th Cir. 2009) (Tjoflat, J.) (“In general, the district court is not

required to state on the record that it has explicitly considered each of the §

3553(a) factors or to discuss each of the § 3553(a) factors. It is sufficient that the

district court considers the defendant’s arguments at sentencing and states that it

has taken the § 3553(a) factors into account.” (citation and quotation marks

omitted)); United States v. Brown, 526 F.3d 691, 713 (11th Cir. 2008); Ellisor,

522 F.3d at 1278.

70  Judge Tjoflat’s separate opinion now asserts, however, that he would have

this Court sitting en banc overturn our precedent on the amount of specificity

required of a sentencing judge. Separate Op. of Tjoflat, J., at 186 n.56. While we

as an en banc court can overturn our own precedent, see, e.g., Main Drug, Inc. v.

Aetna U.S. Healthcare, Inc., 475 F.3d 1228, 1230 (11th Cir. 2007), we cannot

overturn Supreme Court precedent. And the Supreme Court has already laid out

the requirements for a sentencing court’s recitation of its reasoning on each of the

§ 3553(a) factors:

[W]e cannot read the statute (or our precedent) as insisting upon a full opinion in every case. The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances. Sometimes a judicial opinion responds to every argument; sometimes it does not; sometimes a judge simply writes the word “granted,” or “denied” on the face of a motion while relying upon context and the parties’ prior arguments to make the reasons clear. The law leaves much, in this respect, to the judge’s own professional judgment.

Rita, 551 U.S. at 356, 127 S. Ct. at 2468. The depth of detail that Judge Tjoflat’s

separate opinion would require exceeds the requirements of that precedent. See

id.; see also id. at 359, 127 S. Ct. at 2469 (“Where a matter is as conceptually

simple as in the case at hand and the record makes clear that the sentencing judge

considered the evidence and arguments, we do not believe the law requires the

judge to write more extensively.”).

71  Third, the district court’s sentence findings and explanation, which we have

set out in full, see supra at 30–34, are far more specific and detailed than we have

seen in the vast majority of other cases where we have reviewed the substantive

reasonableness of sentences. In fact, we cannot recall seeing sentence findings

and explanations that were more specific and detailed than those in this case,

although the substantive reasonableness of the sentence is another matter. We

have never required or expected district judges to compose a doctoral thesis to

explain why they have imposed a particular sentence.

Fourth, the problem with the district court’s sentence findings and

explanation is not that they are unintelligible or lacking in specificity or effort;

instead, the problem is that the sentence is substantively unreasonable. That

unreasonableness is the underlying cause for the Tjoflat opinion’s criticism of the

findings and explanation as not “intelligible,” for its pronouncement that they

“cannot be reconciled” with the sentence, and for its conclusion that in light of

them the sentence is “inconceivable.” Separate Op. of Tjoflat, J., at 210–13. The

reason that the sentence when viewed against the findings is inconceivable,

irreconcilable, and unintelligible is not the fault of the findings but of the sentence

itself. The Tjoflat opinion confuses the unreasonableness of the sentence with an

absence of stated reasons for it, and the impossibility of giving a reasoned basis

72 for the sentence with a lack of effort on the part of the sentencing judge to do so.

We turn now to the task of explaining why, even under the deferential

standard of review that applies, viewing the facts and circumstances of this case in

light of the § 3553(a) factors leads to the conclusion that the downward deviation

sentence the district court imposed in this case is substantively unreasonable.

C. Substantive Unreasonableness

The statutory minimum sentence applicable to this case is 15 years and the

maximum is 30 years. The advisory guidelines range is 30 years, top and bottom.

The district court deviated downward 12 ½ years to a sentence of 17 ½ years,

which is only 2 ½ years above the statutory minimum. The downward variance

was 42 percent.21 Whether considered in absolute or percentage terms, it is a

“major” variance in the legal parlance of sentencing law. See United States v.

Smith, 573 F.3d 639, 660–61 & n.5 (8th Cir. 2009) (requested variance downward

from a 360-month guidelines sentence to one of 240 months, a reduction of 33

percent, would have been “a major variance”); United States v. Abu Ali, 528 F.3d

210, 261 (4th Cir. 2008) (noting that a downward variance of 40 percent to a

sentence of 30 years is “major”); see also United States v. Burns, 577 F.3d 887,

21 As we have already noted, when viewed in terms of the statutorily permissible range of 15 to 30 years, the district court chose a sentence within that range (a spread of 15 years or 180 months) that was 83 percent below the maximum and only 17 percent above the minimum. See Irey, 563 F.3d at 1227 (Hill, J., concurring).

73 888–90, 896 (8th Cir. 2009) (a variance downward by 60 percent from a 360-

month guidelines sentence to one of 144 months imprisonment is “beyond

dispute” a major one).

Although there is no proportionality principle in sentencing, a major

variance does require a more significant justification than a minor one—the

requirement is that the justification be “sufficiently compelling to support the

degree of the variance.” Gall, 552 U.S. at 50, 128 S. Ct. at 597. The justifications

the district court offered for its major variance downward in sentencing were not

only insufficiently compelling to support the degree of the variance, but they were

also insufficiently compelling to support any variance.

The district court’s clear error in judgment becomes apparent when all of

the facts and circumstances are considered in light of the § 3553(a) factors. What

§ 3553(a) requires is “a sentence sufficient, but not greater than necessary, to

comply with the purposes set forth in paragraph (2)” of that subsection.

Throughout his separate opinion (nineteen times by our count), Judge Tjoflat

refers to the § 3553(a) requirement that a sentence be adequate but not excessive

for the purposes set out in § 3553(a)(2) as “the parsimony principle” or “the

parsimony requirement.” Separate Op. of Tjoflat, J., at 158 & n.21, 159–60, 164,

168, 174–75, 183, 197–98, 203, 209, 222 n.91, 232 n.100. It is a term that has

74 been used in a few other circuits. See, e.g., United States v. Carrasco-De-Jesus,

589 F.3d 22, 29 (1st Cir. 2009) (noting that the appellant “posits that the sentence

violates the parsimony principle of 18 U.S.C. § 3553(a)”); United States v.

Martinez-Barragan, 545 F.3d 894, 904 (10th Cir. 2008) (“[T]he district court must

be guided by the ‘parsimony principle’—that the sentence be ‘sufficient, but not

greater than necessary, to comply with the purposes’ of criminal punishment, as

expressed in § 3553(a)(2).”).

The problem with the parsimony terminology is that the statutory command

has two components of equal standing, and it ignores one of them. The

requirement is not merely that a sentencing court when handing down a sentence

be stingy enough to avoid one that is too long, but also that it be generous enough

to avoid one that is too short. Calling the statutory requirement “the parsimony

principle” is as incomplete and inaccurate as it would be to call the requirement

“the severity principle.” The reason that defense counsel and those who argue for

shorter sentences, either generally or in specific cases, like the term “parsimony

principle” is that it tends to slant the discussion toward shorter sentences by

emphasizing only that part of the twin requirements. But terminology that is less

than completely accurate should not be used to guide judicial decisions.22 A more

22 The term “parsimony principle” is an example of what Holmes once referred to as an “inadequate catch word[ ],” which could by its “very felicity, delay further analysis.” Oliver

75 accurate term, if one is needed, might be “the Goldilocks principle,” because the

goal is to lock in a sentence that is not too short and not too long, but just right to

serve the purposes of § 3553(a).23 In this opinion, however, we will avoid using a

catchword and simply apply the provision as Congress wrote it. We turn now to

the sentencing factors set out in § 3553(a).24

Wendell Holmes, Law in Science and Science in Law, 12 Harv. L. Rev. 443, 455 (1899).

Judge Tjoflat’s separate opinion says that “[a]lthough the court quibbles with the label ‘parsimony principle,’ it does not disagree with the underlying concept.” Separate Op. of Tjoflat, J., at 158 n.21. To the contrary, we emphatically disagree with the “parsimony principle” terminology and the concept that underlies it, which is that one of the two § 3553(a) principles is to be given predominance over the other. The term “parsimony principle” is an “inadequate catch word” that stacks the deck and we would prefer to deal with result-neutral terms. 23 Research reveals that this thought has occurred to at least one other judge. See United States v. Pruitt, 502 F.3d 1154, 1175 (10th Cir. 2007) (McConnell, J., concurring) (“The § 3553(a) factors tell judges, like Goldilocks, not to sentence too high and not to sentence too low.”), vacated, 552 U.S. 1306, 128 S. Ct. 1869 (2008). 24 Judge Tjoflat’s opinion interprets the statutory language of § 3553(a) to require the sentencing judge to identify a single “driving purpose,” and then “explain why the driving purpose subsumes the other purposes.” Id. at 173 n.37; see also id. at 191 (“[T]he (a)(2) purposes should not be weighed against each other; rather, the [district] court should identify the (a)(2) purpose that drives the sentence and fashion a sentence parsimonious to that purpose.”); id. at 190–94 & n.63. Under that novel approach, the driving purpose the sentencing judge chose would run over all of the other purposes listed in the statute.

The statute directs courts to “impose a sentence . . . [that] compl[ies] with the purposes set forth” in § 3553(a)(2). 18 U.S.C. § 3553 (emphasis added). The direction is that the sentence comply with the “purposes” plural; four of them are listed in § 3553(a)(2), and they are joined by the conjunctive “and,” not by the disjunctive “or.” Id. at § 3553(a)(2)(A)–(D). The Tjoflat opinion cites no authority for the proposition that courts should pick one “driving purpose” to speed ahead and flatten the other three.

Not only do we disagree with the approach in Judge Tjoflat’s opinion, but so does the Supreme Court. In explaining how § 3553(a)(6) directs sentencing courts to consider the need to avoid unwarranted sentencing disparities, the Court instructed us that “these disparities must be weighed against the other § 3553(a) factors.” Kimbrough, 552 U.S. at 108, 128 S.Ct. at 574

76  1. Section 3553(a)(1)

The first listed factor—it is actually two factors in one—that a district court

must consider in sentencing, and that a court of appeals must consider in

reviewing the sentence for substantive reasonableness, is “the nature and

circumstances of the offense and the history and characteristics of the defendant.”

18 U.S.C. § 3553(a)(1). To a large extent “the nature and circumstances of the

offense” component of this factor overlaps with the next listed consideration,

which is “the need for the sentence imposed—to reflect the seriousness of the

offense, to promote respect for the law, and to provide just punishment for the

offense,” id. § 3553(a)(2)(A). For that reason, we will postpone some of our

discussion of the nature and circumstances of the offense component of (a)(1)

until we take up the (a)(2)(A) offense-related factor in the next section.

a. The “Victim”

Most of the district court’s reasons for the major variance it imposed relate

to the “history and characteristics of the defendant” component of the § 3553(a)(1)

factor, and it is here where most of the court’s errors in judgment leading to the

unreasonable sentence can be found. To begin with, the district court viewed Irey,

(emphasis added). The Court did not say that the § 3553(a)(6) sentencing disparity factor folds into the § 3553(a)(2) purposes, and that one of those purposes then becomes the driving purpose behind the sentence, but instead that all of the § 3553(a) factors are to be weighed against each other in order to determine the proper sentence.

77 who had raped, sodomized, and tortured fifty underage girls, as himself a victim.

The court said exactly that: “I recognize, of course, that Mr. Irey and his family

and friends are also victims here; and society at large is a victim because, as Dr.

Shaw indicated . . . the Internet . . . has made possible an epidemic of child

pornography.” Dr. Shaw never said that Irey was a victim of the availability of

child pornography on the internet. Nor did Dr. Berlin. Nor did defense counsel.

Nor did Irey himself. The only one who saw Irey as a victim was the district

court.

There are two problems with the district court’s re-casting of the predator as

prey: its factual premise and its legal premise. The problem factually is not with

the court’s explicit finding that the internet “has made possible an epidemic of

child pornography.” No one disputes that. Nor is the problem with the court’s

implicit finding that the availability of child pornography on the internet has

caused some children to be sexually abused by pedophiles who would otherwise

have restrained themselves. In discussing pedophilia generally, Dr. Shaw testified

that the availability of child pornography on the internet “has fueled an epidemic

of pedophilia that was kind of probably in the background, people might not have

even known that they suffered from it, and then come across these images.” So

there is a basis in the record for finding that some pedophiles are excited to action

78 by the child pornography on the internet. That is not the factual problem.

The factual problem is, instead, with the district court’s implicit finding that

child pornography on the internet caused Irey, the only defendant before the court,

to sexually abuse children. We know that it did not, and we know that from no

less of an authority than Irey himself. In a letter he wrote to the district court a

week before sentencing, Irey stated that he did not start viewing child

pornography on the internet until after he had begun having sex with the little girls

in Cambodia.25 The government has insisted throughout this appeal, however, that

it is not challenging any of the district court’s factfindings, only the court’s

characterizations, its application of law to fact, the weight it assigned to various

factors, and the overall reasonableness of the sentence it imposed. For that reason,

we will not disturb the district court’s clearly erroneous finding that the existence

of child pornography on the internet enticed Irey to sexually abuse children or was

a contributing cause of his doing so, and we will instead accept that finding as a

25 In his letter to the court, Irey stated: “I visited these brothels many many times after that. I knew that these girls were not 18. But it was to[o] late, my sex addiction was now in full control of me. After awhile I started to look for child porn on the internet” (emphasis added). And Dr. Berlin’s report stated that: “Mr. Irey denied any sexual fantasies of children before he had the sexual experiences in the Cambodian brothels.”

During oral argument before us, defense counsel conceded that Irey’s own statements negated a finding that he saw child pornography on the internet that enticed him to travel to Cambodia and have sex with children. Counsel acknowledged it was “correct” that Irey “went to Cambodia and visited the child brothels first and then after a while he started looking for it on the internet.”

79 given in our analysis.

The more fundamental problem with the district court’s recasting of Irey-

the-criminal as Irey-the-victim is the legal premise behind it, one that suggests the

criminal is like his victims. Irey is the wrongdoer, the predator, the victimizer.

The little girls in Cambodia are the wronged, the prey, the victims. The district

court should have kept the two separate and not commingled them in its thinking.

Child molesters and the children who are their victims do not occupy the same

moral plane or position or anything resembling it. A man who sexually violates

little children is no more entitled to be considered a victim of child pornography

on the internet than a defendant who rapes an adult woman is entitled to be

considered a victim of sexually provocative images on television. The victims in

this case are the underage girls, some as young as four years old, whom Irey

violated for his own perverse pleasure, filming that violation for distribution

worldwide. Suggesting that Irey, like those little children, was a victim is absurd.

Even defense counsel refused to defend it before us.26

26 During oral argument, defense counsel was asked these questions and gave these answers: Q. What about his factfinding that Irey himself was a victim? What supports that? A. Judge, I think that his statement in that regard is unfortunate and I think it was in direct response to Dr. Sh— Q. You don’t defend that statement do you? A. I do not. The first quoted question in that exchange, above, labeled the district court’s statement a factfinding, but it was not. Calling Irey a victim is a characterization, not a finding of fact.

80  The district court’s view of Irey as a victim permeated its reasoning and

tainted its weighing of the § 3553(a) factors, including (a)(1), which is “the nature

and circumstances of the offense and the history and characteristics of the

defendant.” The nature of an offense would tend to seem less morally outrageous

if the one who committed it were himself a victim. And if the characteristics of

the defendant include being a victim, he is naturally more sympathetic than

otherwise.

b. The “Illness” of Pedophilia

Along these same lines, the district court insisted on describing Irey as

suffering from the “illness” of pedophilia, while the two defense experts

described it as a “treatable disorder.”27 The district court found that because he

suffered from pedophilia: “Mr. Irey’s acts that bring him here today, I think it’s

safe to say, were not purely volitional. I think they were due in substantial part to

a recognized illness. And while it does not excuse his conduct and he will be held

accountable for it, I think it would be inappropriate to ignore that fact.”

The record does not support the district court’s finding that because he is a

pedophile Irey could not much help raping, sodomizing, and sexually torturing

27 Under the DSM IV TR, pedophilia is a paraphilia and an Axis I disorder. Other examples of Axis I paraphilia disorders include voyeurism, exhibitionism, fetishism, frotteurism, transvestic fetishism, sexual masochism, and sexual sadism. DSM IV TR at 566–67.

81 little children, posing them as trophies, and smiling while he did it. The record

actually contradicts that finding. Dr. Berlin reported: “Although it is not his fault

that he has the disorder [of pedophilia], it is his responsibility to do something

about it.” It could not be Irey’s responsibility to do something about his

pedophilia if he lacked the volitional capacity to do something about it. One is

responsible for doing something only if one has the ability to do something about

it. Both experts agreed that pedophilia was treatable. What Irey could have done

about his pedophilia is seek treatment for it. He never once sought treatment for

his pedophilia, which was part of what he described as his “terrible dark side,”

during the four or five years he was sexually abusing little children “many many

times.” Like most criminals, Irey stopped only when he got caught.

Not only that, but as Dr. Berlin noted, “[e]ven without treatment, in the

past, [Irey] had been able to refrain from any sexual contact with children within

the United States.” The undisputed fact is that Irey was perfectly capable of not

sexually abusing children where the risk of detection and punishment was high,

which is why he consciously chose to commit his crimes against children halfway

around the globe in a third world country where there was little or no risk from

law enforcement. Irey’s self-restraint when it was in his own best interest not to

indulge his lust for children proves that his volition was not impaired to any extent

82 worthy of weight in sentencing.

During the sentence hearing, the district court asked Dr. Shaw: “is a person

who acts out as a result of this condition acting totally of rational free will or is

that person acting out as a result of something that is in essence an illness that he

at that point has no control over?” Dr. Shaw refused to endorse the court’s

pedophiles-can’t-much-help-it theory. Instead, he gave his expert opinion that

while pedophilia is not curable, it is treatable and pedophiles can and many do

avoid molesting children. Dr. Shaw stressed that “Pedophilia is very treatable,

and there are many pedophiles in the community who are doing just fine and

managing their behavior.” He later reiterated that there are “thousands of

pedophiles and child molesters, different, out there, . . . who aren’t re-offending,

who are in recovery and are doing just fine.” The “many pedophiles in the

community” could not be doing “just fine” and the “thousands of pedophiles . . .

out there” could not be avoiding commission of offenses if, as the district court

believed, the “illness” of pedophilia rendered the criminal acts of those who

molest children “not entirely volitional.” See generally Bruce J. Winick, Sex

Offender Law in the 1990s: A Therapeutic Jurisprudence Analysis, 4 Psychol.

Pub. Pol’y & L. 505, 524 (1998) (“People diagnosed with pedophilia do not

molest children in the presence of police officers or in other situations presenting

83 a high likelihood of apprehension. Rather, they act with stealth, deception, and

premeditation in an effort to avoid detection. This is purposeful, planned, and

goal-directed conduct, not spontaneous and uncontrollable action or action that is

substantially beyond the individual’s ability to avoid.”); id. at 523–24 (“There is

nothing in the diagnostic criteria for pedophilia or any of the other paraphilias that

suggests that individuals diagnosed with these disorders suffer from any cognitive

impairment that affects their ability to understand the wrongfulness of their

conduct or that renders them irrational in any respect or unable to control their

actions. . . . Moreover, there is nothing in the clinical literature that suggests that

sex offenders are unable to exercise self-control.”).

The district court refused to acknowledge the line that both of the defense

experts drew between pedophilia and child molestation—a line, as the AUSA

argued, that is similar to the one between alcoholism and driving under the

influence. Dr. Shaw attempted to explain to the court metaphorically the

difference between having the urge and acting on the urge: “Pedophiles are

capable of not re-offending, even if they have an urge, in the same way that

compulsive dessert eaters can choose to not eat dessert.” The district court did not

heed the metaphor or the experts’ reports or the testimony of Dr. Shaw, but

instead reasoned that because pedophiles have the urge they have diminished

84 volition when it comes to resisting the urge.

We would recognize this finding as clear error if the government had

argued the point to us. Since it did not, we will accept as a fact, for this case only,

the erroneous finding that when pedophiles molest children they are not acting in

a “purely volitional” way but instead their crimes are “due in substantial part” to

their pedophilia.28

That finding, which we assume correct for this case, is relevant to the §

3553(a)(1) factor concerning “the nature and circumstances of the offense and the

history and characteristics of the defendant.” But the assumed fact cannot

reasonably carry much weight. Not “purely volitional” does not mean not

volitional, and “due in substantial part” does not mean due, period. The district

court did not find that Irey could not help committing the crimes, which he

committed “many many times” over a period of four or five years. Perhaps the

reason the court stopped short of finding Irey could not help it at all is that Irey

28 Judge Tjoflat’s separate opinion accuses us of using the reports we have cited to hold that the district court clearly erred in finding that pedophiles are not acting in a “purely volitional” way when they sexually abuse children. Separate Op. of Tjoflat, J., at 221 & n.89. In doing so that opinion ignores the fact that Dr. Shaw, whom the opinion describes as Irey’s “‘star’ witness,” id. at 204, was himself careful to distinguish between pedophilia and child molestation, a distinction that the district court insisted on blurring. More fundamentally, Judge Tjoflat’s separate opinion also disregards our clear statement, to which this footnote is attached, that because the government has not contested the point, we are accepting as a fact for purposes of this case the finding that when pedophiles molest children they are not acting in a “purely volitional” way but instead their crimes are “due in substantial part” to their pedophilia.

85 obviously did help it when doing so suited his purpose of not getting caught.

While in this country Irey refrained from committing any crimes against children,

never once touching an American child in an inappropriate way, and instead

consorted with adult prostitutes. It was while in Cambodia, where he could get

away with sexually violating children, that he did it so “many many times.” And

he acted with cunning. As Judge Hill put it:

I also disagree with the apparent weighty consideration that the sentencing judge gave to the notion that this defendant acted on account of some type of “sickness.” The defendant acted deliberately, cunningly and with obvious delight. He ruined the lives of at least forty-three children (that we know of) and then published his triumphs on the internet for all the world to see, complete with scurrilous black marker writings tattooed on the nine-year-old girls’ skin.

Irey, 563 F.3d at 1227 (Hill, J., concurring).

Moreover, the “history and characteristics of the defendant” component of

the § 3553(a)(1) factor is aimed at distinguishing among defendants who commit a

particular offense or type of offense. The theory of the district court’s finding,

however, is one of non-distinction because it applies to virtually everyone who

commits this type of crime. According to the district court’s theory,

pedophiles—not Irey in particular but pedophiles in general—share the

characteristic of having impaired volition when it comes to sexually abusing

children. They all have what the district court insisted on calling the “illness” of

86 pedophilia. If the sexual molestation of children by pedophiles is not “entirely

volitional,” as the district court found and as we are assuming, then most sexual

abuse of children is not “entirely volitional,” because most of it is done by

pedophiles. See Ryan C.W. Hall & Richard C.W. Hall, A Profile of Pedophilia:

Definition, Characteristics of Offenders, Recidivism, Treatment Outcomes, and

Forensic Issues, 82 Mayo Clinic Proc. 457, 458 (2007) (“An estimated 88% of

child molesters and 95% of molestations (one person, multiple acts) are

committed by individuals who now or in the future will also meet criteria for

pedophilia. Pedophilic child molesters on average commit 10 times more sexual

acts against children than nonpedophilic child molesters.” (footnotes omitted)).

This point is important because it matters whether the reason for the

variance is a fact that takes the present case outside the heartland of cases covered

by the individual guideline. The Supreme Court instructed us in Kimbrough that

decisions to vary “may attract greatest respect when the sentencing judge finds a

particular case outside the heartland to which the Commission intends individual

Guidelines to apply.” Kimbrough, 552 U.S. at 109, 128 S. Ct. at 574–75

(quotation marks omitted); see also Rita, 551 U.S. at 351, 127 S. Ct. at 2465 (the

guidelines themselves foresee that they are not to apply to cases outside the

heartland of cases). The Court stated that, by contrast, “closer review may be in

87 order when the sentencing judge varies from the Guidelines based solely on the

judge’s view that the Guidelines range fails properly to reflect § 3553(a)

considerations even in a mine-run case.” Kimbrough, 552 U.S. at 109, 128 S. Ct.

at 575; see also Spears, 129 S. Ct. at 843 (“[Kimbrough’s] implication was that an

‘inside the heartland’ departure (which is necessarily based on a policy

disagreement with the Guidelines and necessarily disagrees on a ‘categorical

basis’) may be entitled to less respect.”).

The district court’s reliance on the theory that pedophiles have reduced

volition, applying as it does to virtually all crimes involving sexual abuse of

children, does not take this case outside the heartland to which the Commission

intended the guidelines relating to sexual offenses against children to apply.

Instead, the pedophiles-are-ill variance is more properly seen as a variance based

on the judge’s view that the guidelines range for crimes involving the sexual

abuse of children does not properly reflect § 3553(a) factors even in mine-run

cases, i.e., in the vast majority of cases. For that reason, as Kimbrough teaches,

the decision is not entitled to the “greatest respect” but instead should be subject

to “closer review.” Exercising that closer review, we reject as unreasonable and a

clear error in judgment the district court’s view that the guidelines involving sex

crimes against children are too harsh in a mine-run case because pedophiles have

88 impaired volition. The reasons should be apparent but, if not, we refer the reader

to our upcoming discussion about the devastating and permanent harm that this

type of crime inflicts on its young victims. See infra at 98–102; see also Garcia v.

Quarterman, 456 F.3d 463, 471–72 (5th Cir. 2006) (capital case) (“The second

error in Garcia’s argument is the suggestion that pedophilia may be considered

‘mitigating’ of a defendant’s moral culpability. No case has so held. . . . There is

no sense in which reasonable people could view Garcia’s pedophilia as morally

mitigating of guilt, any more than reasonable people would find a defendant’s

uncontrollable compulsion to commit incest or eat human flesh ‘mitigating.’”),

vacated on other grounds, 257 Fed. App’x 717 (5th Cir. 2007).

c. Husband, Father, and Member of the Community

While considering the “the history and characteristics of the defendant”

component of § 3553(a)(1), the district court also weighed in Irey’s favor his

status as a family man and member of the community:

By all accounts, Mr. Irey has been a good husband and father for his wife and children and a good friend to his friends and a good person to his community. The lies and thefts, I think, referred to by Ms. Hawkins were essentially part of his effort to cover up his illness, because I think other than the acts of Mr. Irey, there’s no indication that he has engaged in any other sort of criminal conduct or conduct representing poor character.

That is unreasonable and a clear error in judgment on several different levels.

89  To begin with, the judge’s reasoning is like saying that other than the fact

he had an “illness” that made him want to kill young women, Ted Bundy was a

pretty nice guy and a valuable member of his community. That not only could

have been said about Bundy, but something like it actually was said. See Ann

Rule, The Stranger Beside Me 33–34 (2000) (describing how the author worked

beside Bundy at a crisis clinic with a suicide prevention line, where Bundy served

the community well: “If, as many people believe today, Ted Bundy took lives, he

also saved lives. I know he did, because I was there when he did.”). The district

court’s reasoning is also like saying that but for his taste for human flesh and how

he satisfied it, Jeffrey Dahmer was not so bad. See Lionel Dahmer, A Father’s

Story 47 (1994) (describing how Jeffrey Dahmer had helped rescue a baby bird

that had fallen from the nest and had nursed it back to health).

By the simple expedient of assuming away or putting out of mind all the

criminal acts that they have committed, one may describe many, if not most,

criminals as good people without “any other sort of criminal conduct or conduct

representing poor character.” Irey did not merely slip up and commit one criminal

act. He persistently flew halfway around the world on a regular basis for four or

five years and “many many times” raped, sodomized, and sexually tortured

helpless children. And he recorded his sexual abuse and debasement of the little

90 children in photographs and videos for his own personal enjoyment and to share

with others. No one who commits such heinous crimes has good character

regardless of whether the criminal, while he was not raping, sodomizing, and

torturing helpless children, was a good father, or husband, or member of his local

community (as distinguished from the world community). It was unreasonable

and a clear error in judgment to vary downward for Irey on the theory that he has

good character. See Martin, 455 F.3d at 1239–40 (disapproving the sentencing

court’s emphasis on the defendant’s lack of a criminal record and the aberrational

nature of his crimes, which the guidelines had already taken into account, and

pointing out that his criminal conduct spanned a period of years and caused much

harm).

The Fourth Circuit had a somewhat similar situation before it in United

States v. Abu Ali, 528 F.3d 210, 258–59 (4th Cir. 2008), where the sentencing

court in a case involving attempted terrorism had varied downward from a

guidelines range sentence of life to a sentence of 30 years after considering,

among other things, the many letters it had received “describing Abu Ali’s

‘general decent reputation as a young man’ and his overall ‘good character.’” Id.

at 268. Vacating the 30-year sentence as unreasonably lenient, the Fourth Circuit

was “unmoved” by those letters, explaining:

91  What person of “decent reputation” seeks to assassinate leaders of countries? What person of “good character” aims to destroy thousands of fellow human beings who are innocent of any transgressions against him? This is not good character as we understand it, and to allow letters of this sort to provide the basis for such a substantial variance would be to deprive “good character” of all its content.

Id. Likewise here. What person of good character commits the horrific crimes

that Irey did against at least fifty different children and on “many many”

occasions over a four- or five-year period, stopping only when he is finally

caught? What the Fourth Circuit said applies as well to this case and what Irey

did: “This is not good character as we understand it.” If Irey is a person of good

character, the term has no meaning worth mentioning.

The facts about Irey as a husband, father, and member of the community

are not disputed, the question is how to weigh them for sentencing purposes. The

uncontroverted facts are that as a husband Irey had been cheating on his wife with

prostitutes for the past 15 years, which was three-fifths of the 25 years they had

been married. See Pugh, 515 F.3d at 1192–93 (considering beyond the sentence

findings “these additional salient facts that were elicited, and uncontroverted, at

the sentencing hearings”); see also Gall, 552 U.S. at 51, 128 S. Ct. at 597 (the

appellate court “will, of course, take into account the totality of the

circumstances”). He did it on a weekly basis while he was in Orlando, his

92 hometown. Because of Irey’s immoral conduct, he contracted a venereal disease

and passed it on to his wife. He lied to his wife. As a result of Irey’s depraved

criminal misconduct his family lost their expensive house, their savings, and their

second-generation family business. Irey admitted that because he had spent so

much time over the years pursuing sex outside marriage, he spent less time with

his children than he should have: “I was cheating my children out of things like

taking them to the parks or a basketball game, because I had to go pick up a

prostitute.” In view of those uncontroverted facts, no significant weight can be

given to Irey’s having been “a good husband and father for his wife and children.”

Irey lied not just to his wife but to others as well. As he put it, “I would lie

to people even when I did not need to.” He stole from the family business, which

his father had started a half century before. His criminal conduct put the long-

established company out of business, costing fifty members of the community

their jobs. No number of civic club memberships can outweigh the harm that Irey

caused his wife and family and the community.

It was, however, appropriate for the district court to find and consider that

“Irey obviously has a very loving family” and “deserves whatever credit he should

take for having produced these people” who spoke on his behalf at the sentence

hearing. That is true even though the extremes Irey’s family members went to in

93 expressing their affection for and devotion to him seem detached from the reality

of the circumstances in which they were called upon to do it. It is incongruous at

best to describe the man who had sexually tortured so many little children as

“loving,” a “hero,” a “star,” and as one who taught others “so much about life and

love,” and who “had a way of touching people’s lives.” Still, we are sympathetic,

as the district court was, to the terrible emotional plight that Irey’s family was in

because of his crimes. It is admirable that they chose to stand by him, but in

deciding how that weighs in the sentencing calculus their statements have to be

considered in context.

It may well be, as the government suggests, that some of the good things

Irey’s family members had to say about him are a testament to his ability to lead a

double life and to evade detection even by those closest to him. Their praise of

Irey may prove that he knew how to keep his family and friends in the dark about

his “terrible dark side,” as he described it to the district court.29 Still, it was not

unreasonable for the district court to conclude that Irey has a “very loving family”

and “deserves whatever credit he should take for having produced these people.”

We would find grossly unreasonable, however, any suggestion that the credit Irey

29 We know from Dr. Shaw’s report that, at least at the time of one of Irey’s psychological evaluations, his wife was unaware of the severity of his crimes. Dr. Shaw also testified that “I assume that people are going to minimize and leave some of the worst things out.”

94 may be due for his family’s feelings for him could even remotely approach the

heavy weight stacked against him for the criminal acts he committed.

d. Age

The district court also considered “[a]nother aspect of defendant’s

character” to be Irey’s age and weighed in his favor the fact that with “even the

minimum sentence here he’s going to be an old man . . . when he gets out of

prison.” Irey was 43 or 44 years old when he started sexually abusing children,

and he was 50 when he was sentenced. With the sentence the district court

imposed, minus time off for good behavior under § 3624, Irey would be 65 years

old when released. With the maximum sentence of 30 years, minus time off for

good behavior, Irey would be 76 years old when released. 18 U.S.C. § 3624; 28

C.F.R. §§ 523.20, 541.13 (2005); see also Barber v. Thomas, 130 S.Ct. 2499

(2010).30

We fail to see how those facts show that Irey is different from any other

person who commits horrendous crimes in middle age and faces a long prison

sentence. Cf. United States v. Seljan, 547 F.3d 993, 997–98 (9th Cir. 2008) (en

30 Judge Tjoflat’s separate opinion takes the position that in performing our sentencing review we should not consider any statute, such as 18 U.S.C. § 3624, unless it was cited by or in the district court. See Separate Op. of Tjoflat, J., at 223 n.93, 224–25, 227. That is an odd position for that opinion to take since the opinion itself cites and discusses § 3624 in connection with sentencing “honesty.” Id. at 153 n.13. We will not blind ourselves to the law, give a less than honest accounting of it, and ignore a relevant statute merely because it was not discussed in the district court.

95 banc) (87-year-old defendant sentenced to 20 years for sexually abusing children);

United States v. Zastrow, 534 F.3d 854, 855 (8th Cir. 2008) (73-year-old man

sentenced to 20 years for enticing or coercing an 8-year-old girl into sexually

explicit conduct which he photographed). Besides, if Irey had not successfully

evaded detection for four or five years he would be that much younger when he

gets out of prison. In these circumstances rewarding Irey for being older rewards

him for evading detection and it is unreasonable to do that.

2. Section 3553(a)(2)(A)

The second factor that a district court must consider in sentencing, and that

a court of appeals must consider in reviewing the sentence for substantive

reasonableness, is “the need for the sentence imposed . . . to reflect the seriousness

of the offense, to promote respect for the law, and to provide just punishment for

the offense.” 18 U.S.C. § 3553(a)(2)(A). This requirement extends beyond, but

also overlaps to some extent with, the “nature and circumstances of the offense”

component of §3553(a)(1).

The § 3553(a)(2)(A) consideration is the “just deserts” concept, which

carries the need for retribution, the need to make the punishment fit the crime, and

the need not just to punish but to punish justly. In Pugh we quoted from the

Senate Report regarding this provision:

96  This purpose—essentially the “just deserts” concept—should be reflected clearly in all sentences; it is another way of saying that the sentence should reflect the gravity of the defendant’s conduct. From the public’s standpoint, the sentence should be of a type and length that will adequately reflect, among other things, the harm done or threatened by the offense, and the public interest in preventing a recurrence of the offense. From the defendant’s standpoint the sentence should not be unreasonably harsh under all the circumstances of the case and should not differ substantially from the sentence given to another similarly situated defendant convicted of a similar offense under similar circumstances.

515 F.3d at 1195 (quoting S. Rep. No. 98-225, at 75–76, 1984 U.S.C.CA.N.

3258–59); see also United States v. Lychock, 578 F.3d 214, 220 (3d Cir. 2009);

United States v. White Face, 383 F.3d 733, 740 (8th Cir. 2004); United States v.

Beasley, 12 F.3d 280, 283 (1st Cir. 1993).

Because the punishment should fit the crime, the more serious the criminal

conduct is the greater the need for retribution and the longer the sentence should

be. The seriousness of a crime varies directly with the harm it causes or threatens.

It follows that the greater the harm the more serious the crime, and the longer the

sentence should be for the punishment to fit the crime. As we have stated before,

“[c]hild sex crimes are among the most egregious and despicable of societal and

criminal offenses.” United States v. Sarras, 575 F.3d 1191, 1220 (11th Cir. 2009)

(affirming as reasonable a 100-year sentence for a first offender who sexually

abused a single 13-year-old girl and took photos of it). And Irey’s criminal

97 conduct, as we stated at the beginning, is virtually unparalleled in a “most

egregious and despicable” field of crime. This circuit has seen few, if any, other

criminals who have over such a long time span raped, sodomized, and tortured so

many children, some of whom were very young, and all of whom were among the

most helpless people in the world. Irey, a 200-pound man, subjected his helpless

young victims not just to sexual intercourse but also to anal and oral sodomy and

to sexual torture that went far beyond the heartland of depravity even for child

molesters. Irey treated his child victims as objects, as his toys, which he bought

and then did with as he pleased. He smiled as they cried out in pain. As if that

were not enough, Irey also photographed and video recorded his debauchery and

distributed it on the internet, thereby guaranteeing that the record of it would

outlast him and all of us, inspiring other child molesters to commit crimes against

children.

Much has been said to describe and emphasize the grave harm that sexual

abuse of children inflicts on its victims. Some of the best and most recent

descriptions of that harm can be found in Kennedy v. Louisiana, — U.S. —, 128

S. Ct. 2641 (2008). Although the Court by a 5 to 4 margin decided that capital

punishment could not constitutionally be imposed for the rape of a child, all nine

justices agreed that sexual abuse of children inflicts enormous harm on the

98 victims. The majority acknowledged that:

Here the victim’s fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood. . . . Rape has a permanent psychological, emotional, and sometimes physical impact on the child. We cannot dismiss the years of long anguish that must be endured by the victim of child rape.

Id. at 2658 (citations omitted).

The four dissenting justices in Kennedy believed that child rape was such a

serious crime that death could be imposed as punishment for it. Id. at 2677–78

(Alito J., joined by Roberts, C.J., Scalia, and Thomas, JJ., dissenting). They

stressed the devastating, long-term effect that rape has on children. See id. at

2677 (“The immaturity and vulnerability of a child, both physically and

psychologically, adds a devastating dimension to rape that is not present when an

adult is raped. Long-term studies show that sexual abuse is grossly intrusive in

the lives of children and is harmful to their normal psychological, emotional and

sexual development in ways which no just or humane society can tolerate.”

(quotation marks and citations omitted)). All nine justices agreed about that, and

so do we.

Even before the Kennedy opinions, the Supreme Court had long recognized

that childhood sexual abuse has devastating and long-lasting effects on its victims.

99 See New York v. Ferber, 458 U.S. 747, 758 n.9, 102 S. Ct. 3348, 3355 n.9 (1982)

(“It has been found that sexually exploited children are unable to develop healthy

affectionate relationships in later life, have sexual dysfunctions, and have a

tendency to become sexual abusers as adults.” (citing Schoettle, Child

Exploitation: A Study of Child Pornography, 19 J. Am. Acad. Child Psychiatry

289, 296 (1980))). The damage to children who are the victims of sexual abuse is

not limited to psychological and emotional injury; serious physical injuries often

result as well. See, e.g., Kennedy, 128 S. Ct. at 2646; State v. Goodwin, 679 P.2d

231, 232 (Mont. 1984) (seven-year-old victim suffered “a severe laceration in the

vaginal area extending all the way to the cervix. Major surgery was required to

repair the vaginal laceration.”); id. at 234 (doctor testified that “[i]t was also too

early to know whether normal sexual intercourse or childbearing would be

possible” for the victim later in life); see also United States v. Eagle, 515 F.3d

794, 799 (8th Cir. 2008) (“After the assaults, [the 8-year-old victim] experienced

mental, emotional, and physical problems. For instance, he began feeling sad and

unhappy and also experienced encopresis, or involuntary defecation.” (footnote

omitted)). In this regard, it is worth remembering that Irey proudly imbedded in

all capitals on one of the images he produced that: “Big Cock Push Bug Deep

Into 9 Yo Girl, She Hurt in Pane.”

100  When child pornography is produced in conjunction with the sexual abuse

of children, as it was here, the harm to the child victims is magnified and

perpetuated. See Ferber, 458 U.S. at 759, 102 S. Ct. at 3355 (stating that “the

materials produced are a permanent record of the children’s participation and the

harm to the child is exacerbated by their circulation”); Pugh, 515 F.3d at 1197–98

& n.12 (citing extensive congressional findings about the harm caused by child

pornography and recognizing that “[i]n light of these detailed legislative findings

and numerous legislative enactments, we cannot help but underscore the

seriousness of this crime”); see also Adam Walsh Child Protection and Safety Act

of 2006, Pub. L. No. 109-248, § 501(2)(D), 120 Stat. 587, 624 (2006) (codified at

18 U.S.C. § 2251 note) (“Every instance of viewing images of child pornography

represents a renewed violation of the privacy of the victims and a repetition of

their abuse.”).

There is another aspect of the compounding harm that the production and

distribution of child pornography inflicts. It may incite or encourage others to

sexually abuse children. Indeed, the district court found in this case that child

pornography did have that effect on at least some pedophiles, causing them to

sexually abuse children who otherwise would not have been abused. See supra at

31. The district court, however, seems to have ignored what its own finding

101 means to the calculus of harm that Irey caused. He is, after all, the producer and

distributor of one of the most graphic, depraved, and widely distributed series of

child pornography on the internet, the infamous “pink wall series.” So widely

distributed is it that over a hundred law enforcement agencies had turned up child

pornography from the series in their investigations. If child pornography is a

cause of child sexual abuse, as Dr. Shaw testified and the district court found, then

Irey not only sexually abused fifty or more little girls in Cambodia but he also

multiplied the harm he did by inciting others to sexually abuse countless more

children all over the world. The district court did not even mention that harm-

multiplier aspect of Irey’s crime in its findings.

To be sure, the district court did describe the crime as “horrific,” the victims

as “numerous,” and “perhaps the most vulnerable of the world’s society,” and it

did state that it was “an offense that rises to the very top in terms of its seriousness

and its effect on other human beings” who “may never, never overcome their

abuse.” The court also, in an incredible understatement, said that “the

characteristics of the offense, the seriousness of it itself, the long-standing, long-

term engagement in it certainly does not mitigate in favor of any leniency”

(emphasis added). But the court then proceeded to show leniency anyway, in this

worst of the worst crimes, by varying downward from the guidelines range by 12

102 ½ years to a sentence of 17 ½ years, which is only 2 ½ years above the statutory

minimum. See Irey, 563 F.3d at 1227 (Hill, J., concurring) (noting how far the

sentence was from the maximum and how close to the minimum).

The 17 ½-year sentence, if all of it were to be served, would amount to only

4 months and a week for each of the 50 distinguishable victims that Irey raped,

sodomized, or sexually tortured. In light of 18 U.S.C. § 3624, Irey will likely

serve only 15 years and 3 months of his sentence, which works out to less than

four months for each of those 50 victims who can be distinguished from each

other in the images that show some of Irey’s crimes. And that calculation does

not include any time for Irey’s additional criminal behavior of producing and

distributing the massive amount of extremely graphic child pornography. Four

months per child raped, sodomized, and tortured is grossly unreasonable. In

sentencing there should be no quantity discount for the sexual abuse of children.

Cf. Crisp, 454 F.3d at 1291 (“The court gave Crisp five hours for a crime that

caused $484,137.38 in harm. That equates to $96,827.48 per hour or $1,613.79

per minute served in custody. The sentence does not reflect the seriousness of the

crime, promote respect for the law, and provide just punishment for the offense, as

§ 3553(a)(2)(A) requires, nor does it afford adequate deterrence to criminal

conduct, as § 3553(a)(2)(B) requires.”).

103  There is another way to gauge the reasonableness of Irey’s sentence: by

comparing what he did and the time he received above the statutory minimum to

the minimum conduct required to violate the statute and receive the minimum

sentence. This is an aspect of the “just deserts” concept. The less it takes to have

the statutory minimum sentence imposed, the higher the sentence should be for

someone who does much, much worse than the minimum amount of criminal

behavior that would violate the statute. Irey was convicted of violating 18 U.S.C.

§ 2251(c), which prohibits using or enticing “any minor” to engage in, or assist

any other person to engage in, “any sexually explicit conduct” outside the United

States for the purpose of producing any visual depiction of that conduct. “Minor”

is defined as any person under 18 years of age. 18 U.S.C. § 2256(1). A person

who traveled to another country and took a single photograph of a 17-year-old

engaging in an obscene pose by herself would be guilty of violating the same

statute and be subject to a mandatory minimum sentence of 15 years in prison.

See id. § 2256(2)(A)(v) (“sexually explicit conduct” defined to include “lascivious

exhibition of the genitals or pubic area of any person”). That means Irey, for all

of his years of sexual violation, torture, and humiliation of at least 50 children,

received only 30 months more than if all he had done was on a single occasion

snap a single photo of a single, teenage child in an obscene pose by herself. That

104 cannot be reasonable.31

We realize that 17 ½ years, even when reduced to 15 ¼ years to serve is, as

the panel stated, “a substantial portion of a human life—and no serious person

should regard it as a trifle.” Irey, 563 F.3d at 1226. We do not regard it as a trifle,

but we are required to review all challenged sentences for substantive

reasonableness. See Gall, 552 U.S. at 41, 128 S. Ct. at 591 (“[C]ourts of appeal

must review all sentences—whether inside, just outside, or significantly outside

the Guidelines range.”). And sentences even longer than 17 ½ years have been

held to be unreasonably short in view of all the facts and circumstances including,

of course, the crime. See Ressam, 593 F.3d at 1130–31 (a 22-year sentence); Abu

Ali, 528 F.3d at 262 (a 30-year sentence). Irey, after all, sentenced the children he

raped, sodomized, and sexually tortured to a lifetime of harm, and the egregious

child pornography he created and distributed will, because he uploaded it to the

internet, continue causing harm for far longer than 17 ½ years. Irey’s pink wall

series will last longer than his own lifetime or ours, inciting and encouraging the

sexual abuse of multitudes of children yet unborn.

The district court did impose a lifetime of supervised release on Irey once

31 It is also worth noting that if Irey had sexually abused a single one of his 50 victims in this country, he would have received a mandatory minimum 30-year sentence. See 18 U.S.C. § 2241(c).

105 he leaves prison, as the guidelines recommend for every offender who sexually

abused children. See U.S.S.G. § 5D1.2(b). While it is true that someone on

supervised release is not entirely free, it is equally true that he is not confined in a

prison either. As the Supreme Court has held, “[s]upervised release, in contrast to

probation, is not a punishment in lieu of incarceration.” United States v.

Granderson, 511 U.S. 39, 50, 114 S. Ct. 1259, 1266 (1994). And “a term of

supervised release does not replace a portion of the sentence of imprisonment, but

rather is an order of supervision in addition to any term of imprisonment imposed

by the court.” United States v. Goad, 44 F.3d 580, 585 n.13 (7th Cir. 1995). If

being on supervised release were the punitive equivalent of being in prison, if it

served the just deserts function as well, there would be no need to put most

criminals in prison; we could put them on supervised release instead. If the

punitive impact of the two were the same, convicted criminals would not ask for a

longer term of supervised release in hopes of getting a shorter term of

imprisonment. Yet they do. Irey’s attorney, for example, pleaded with the district

court not to impose the 30-year guidelines range sentence but instead to set the

sentence at “between 15 and 20 years with up to [a] lifetime of supervised

release.” Irey clearly views supervised release as being significantly less punitive

than imprisonment. And it is.

106  The same is true of the other restrictions the district court imposed, all of

which are required or strongly recommended for all convicted sex offenders, such

as participation in a substance abuse program and a mental health program

specializing in sex offender treatment, compliance with any state sex offender

registration law, being subject to search based upon reasonable suspicion, and “the

standard terms concerning risk control.” Those release terms may be

inconvenient, annoying, and burdensome, but they are not the equivalent of being

behind bars. If they were, no convicted sex offender would care whether he

remained in prison or was released subject to those conditions.

In imposing a sentence below the advisory guidelines range, the district

court unreasonably failed to give enough weight to “the nature and circumstances

of the offense,” 18 U.S.C. § 3553(a)(1), and to the need for the sentence imposed

“to reflect the seriousness of the offense, to promote respect for the law, and to

provide just punishment for the offense,” id. § 3553(a)(2)(A).

3. Section 3553(a)(2)(B)

The third factor that a district court must consider in sentencing, and that a

court of appeals must consider in reviewing the sentence for substantive

reasonableness, is “the need for the sentence imposed . . . to afford adequate

deterrence to criminal conduct.” Id. § 3553(a)(2)(B). The sentencing judge in this

107 case referred to this important sentencing purpose as one of the § 3553(a) factors

that “essentially are subjective in nature.” He did say that “a serious sentence is

hopefully going to deter others from conducting similar affairs,” but then

expressed his view that “when we’re dealing with an illness like this, I’m not sure

that that rationally follows.” Even though the judge said that “nevertheless,

deterrence is an appropriate consideration,” it is apparent that his idiosyncratic

doubts about whether pedophiles could be deterred from committing crimes

involving the sexual abuse of children and child pornography affected the weight

he gave to this important § 3553(a) factor.

The sentencing judge’s skepticism about deterring these types of crimes is

not shared by Congress, the Sentencing Commission, the Supreme Court, this

Court, or other courts of appeals. See, e.g., Ferber, 458 U.S. at 760, 102 S. Ct. at

3356 (“The most expeditious if not the only practical method of law enforcement

may be to dry up the market for [child pornography] by imposing severe criminal

penalties on persons selling, advertising, or otherwise promoting the product.”);

Osborne v. Ohio, 495 U.S. 103, 109–10, 110 S. Ct. 1691, 1696 (1990) (“It is also

surely reasonable for the State to conclude that it will decrease the production of

child pornography if it penalizes those who possess and view the product, thereby

decreasing demand.”).

108  Far from questioning the value of deterrence, in Pugh we held that the

deterrence objective of sentencing is “particularly compelling in the child

pornography context.” 515 F.3d at 1194. We explained that imposing a lighter

sentence on one convicted of a child pornography offense “tends to undermine the

purpose of general deterrence, and in turn, tends to increase (in some palpable if

unmeasurable way) the child pornography market.” Id. The problem of a missed

opportunity for deterrence, we observed, is compounded when the crime involves

not just possession but also distribution of child pornography. Id. Other circuits

agree. E.g., United States v. Goff, 501 F.3d 250, 261 (3d Cir. 2007) (“[D]eterring

the production of child pornography and protecting the children who are

victimized by it are factors that should have been given significant weight at

sentencing . . . .”); United States v. Barevich, 445 F.3d 956, 959 (7th Cir. 2006)

(“Transporting and receiving child pornography increases market demand. The

greater concern under the Guidelines is for the welfare of these exploited children.

The avenue Congress has chosen to weaken the child pornography industry is to

punish those who traffic in it.”).

United States v. Lychock, 578 F.3d 214 (3d Cir. 2009), involved a

defendant who had been convicted of possessing child pornography. The

guidelines range was 30 to 37 months but the district court varied down to a

109 sentence of probation and a fine. Id. at 216. That district court, like the one in

this case, acknowledged that the crime “is a serious offense,” but characterized the

defendant as otherwise “law abiding” and was impressed with his “supportive

family,” and the fact that he had sought psychological help (after he was caught)

and was benefitting from it. Id. (quotation marks omitted). The district court in

Lychock, like the one in this case, was skeptical about whether pedophiles could

be deterred. The court there remarked:

The only benefit I could see [to imprisonment would be] as a deterrent to others, and that is a factor. . . . So other people would recognize that they cannot subscribe to these images with impunity. I am not persuaded that a jail term for this defendant warrants, or is to be equated with that value. The kind of psychological problem in persons who are drawn to this kind of material it seems to me is not going to be deterred by a jail term for an internet porno observer.

Id. at 217. The Third Circuit rejected that reasoning and held the sentence

substantively unreasonable. Id. at 220–21.

As the Third Circuit noted, the district court’s downplaying of deterrence

where pedophiles are concerned reflects “a policy disagreement with the

Guidelines recommendations, [and] such a disagreement is permissible only if a

District Court provides ‘sufficiently compelling’ reasons to justify it.” Id. at

219–20 (citing Gall, 552 U.S. at 50, 128 S. Ct. at 597, and Kimbrough, 552 U.S. at

109, 128 S. Ct. at 575). And “[t]he conclusory statement of personal belief

110 provided in this case does not suffice.” Lychock, 578 F.3d at 220. The same is

true here.32

The defendant in United States v. Goldberg, 491 F.3d 668 (7th Cir. 2007),

had been convicted of possessing child pornography and the guidelines range was

63 to 78 months. Id. at 669. The district court varied downward to impose only a

nominal prison sentence to be followed by a decade of supervised release. Id. at

669–70. The Seventh Circuit reversed the sentence as substantively unreasonable

because the district judge, among other things, had based the sentence on her

“idiosyncratic penological views,” id. at 673, and had “neglected considerations of

deterrence and desert,” id. at 674. The court explained why deterrence was so

important in crimes involving the sexual abuse of children, including child

pornography crimes:

Young children were raped in order to enable the production of the pornography that the defendant both downloaded and uploaded— both consumed himself and disseminated to others. The greater the customer demand for child pornography, the more that will be

32 In Pugh, we rejected the notion that Kimbrough-style policy disagreement could justify the district court’s decision to impose a probation-only sentence in a child pornography case where the minimum guidelines sentence was 97 months. 515 F.3d at 1201 n.15. We concluded that the guidelines sentences for child pornography crimes, which reflect judgments by both Congress and the Sentencing Commission as to the seriousness of the offense and the risk of recidivism, “do not exhibit the deficiencies the Supreme Court identified [in the crack cocaine guidelines] in Kimbrough.” Id. We do not rule out the possibility that a sentencing court could ever make a reasoned case for disagreeing with the policy judgments behind the child pornography guidelines. We hold simply that in this case (involving production of child pornography), as in Pugh (involving possession of child pornography), the district court did not come close to doing so.

111  produced. Sentences influence behavior, or so at least Congress thought when in 18 U.S.C. § 3553(a) it made deterrence a statutory sentencing factor. The logic of deterrence suggests that the lighter the punishment for downloading and uploading child pornography, the greater the customer demand for it and so the more will be produced.

Id. at 672. We would add that in this case not only were young children raped in

the course of producing child pornography, but Irey is the one who actually did

the raping.

The more serious the crime and the greater the defendant’s role in it, the

more important it is to send a strong and clear message that will deter others. In

sentencing Irey the district court should not have under-weighed the §

3553(a)(2)(B) adequate deterrence factor based on a conclusory statement of its

personal subjective views (what the Seventh Circuit would call “idiosyncratic

penological views”) questioning the value of deterrence in crimes involving the

sexual abuse of children. Kimbrough allows a district court to vary from the

guidelines based solely on its judgment that the policies behind the guidelines are

wrong. See 552 U.S. at 109, 128 S. Ct. at 575. When a district court does so,

however, “closer review” of its reasoning is warranted. Id. Exercising that

review, we conclude that the district court made a clear error of judgment in

downplaying the importance of deterring this type of crime.

4. Section 3553(a)(2)(C)

112  The fourth factor that a district court must consider in sentencing, and that a

court of appeals must consider in reviewing the sentence for substantive

reasonableness, is “the need for the sentence imposed . . . to protect the public

from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). This is the

specific deterrence or incapacitation factor.

Dr. Berlin, the defense psychiatrist, did not rate the risk of Irey committing

more crimes against children as low or high, but instead gave his opinion that if

Irey was “shown mercy and given the opportunity, he will be able to re-enter

society as a safe and productive citizen.” Dr. Shaw’s report was more descriptive

of the risk. It revealed that under one method of assessing risk, the Static-99

method, Irey’s score placed him in “the Medium-Low risk category for sexually

re-offending.” According to Dr. Shaw, the research study he relied on indicated

that people with Irey’s score had recidivism rates of 12%, 14%, and 19% after

five, ten, and fifteen years. The Shaw report did add that: “[t]he authors of the

instrument, in reviewing development samples, found that few individuals

recidivated beyond the age of sixty. Though this finding has mixed research

support, in general as males age their sexual interest wanes.” Irey’s score on

another instrument used to assess the risk of recidivism, the Minnesota Sex

Offender Screening Tool-Revised, placed him in “the Moderate Risk Range.” The

113 Shaw report concluded that all of the risk assessment factors “suggest a moderate

to low moderate risk of a new charge,” which could “be reduced through

continued treatment and informed supervision upon his release.”

At one point during the sentence hearing Dr. Shaw testified that Irey was

“essentially in the medium low to medium or moderate risk categories, which is—

which is below a threshold of likely.” At a later point, he testified that “overall, I

find him to be, as I said, a moderate risk, a low-moderate risk, low in

psychopathy.” He immediately added that Irey “does have—has deviant

interests.” In discussing whether the risk that Irey would sexually abuse children

in the future could be reduced by using testosterone-reducing drugs, Dr. Shaw

testified that they “come with a number of side-effects,” that “they’re not always

useful,” and that when and if Irey is released “he’s going to have experienced a

reduction naturally in testosterone and a reduction in sex drive.” Dr. Shaw did not

say that through any combination of factors and circumstances Irey would have a

negligible risk of committing more crimes against children.

The district court credited the opinions of the two experts, which it re-

characterized as Irey having “a low risk of recidivism.” But then the court added:

“Of course, all of that is somewhat academic because by the time he gets out of

prison, he’ll be most likely at an age where recidivism would be unlikely, just

114 from a physiological standpoint.”

At the completion of the sentence that the district court imposed on him,

with the § 3624 reductions considered, Irey would be 65 years old. There is no

support in the record for a finding that a 65-year-old male with what Dr. Shaw

called “deviant interests,” who has a record of not just raping and abusing children

but also of sexually torturing them, is too old to do it again, thereby rendering

concern about recidivism “academic.” That is not what Dr. Shaw said about the

aging process. He said, when talking about whether he would advise drug therapy

for Irey when he was released, that as they age men are “going to have

experienced a reduction naturally in testosterone and a reduction in sex drive.”

That is different from saying that pedophiles in their sixties lose interest in

sexually abusing children or are physically incapable of doing so. No one testified

that the risk of recidivism is “academic” for a pedophile in his sixties or

seventies, probably because that simply is not true.

One need look no further than the facts in published opinions to see that.

For example, United States v. Seljan, 547 F.3d 993 (9th Cir. 2008) (en banc),

involved a man in his mid-80s who was arrested on his way to the Philippines to

“sexually educate” some children by engaging in sexual relations with them. Id.

at 997–98. He had been to the Philippines 43 times during the previous 11 years,

115 when he was between the ages of approximately 74 and 85, in order to have sex

with children there. See id. He told agents after he was arrested that he had been

“sexually educating” children ages 8 to 13 for about 20 years, which means that

he started when he was around 65 years old. See id. at 998. He had bragged

about doing it and had a scrapbook and video collection of child pornography. Id.

at 997. Even though he was 87 years old at the time of sentencing the district

court imposed a 20-year sentence on him. Id. The Ninth Circuit rejected his

attack on the sentence as unreasonable even though it was tantamount to a life

sentence. Id. at 1007; see also Zastrow, 534 F.3d at 855–57 (affirming conviction

and 20-year sentence of a 73-year-old man who enticed or coerced an 8-year-old

girl into sexually explicit conduct which he photographed); United States v.

MacEwan, 445 F.3d 237, 240 (3d Cir. 2006) (defendant had repeatedly violated

federal laws prohibiting the possession, distribution, and receipt of child

pornography when he was between the ages of approximately 66 and 70); Weiler

v. Purkett, 104 F.3d 149, 152 (8th Cir. 1997) (plaintiff, a state prison inmate, had

sodomized and sexually abused a female child for 3 years, beginning when the girl

was 7 and the defendant was approximately 70). The facts of those cases show

that the risk of a male sex offender sexually abusing children after he reaches the

age of 65 is anything but “academic.”

116  Studies and reports in this field are consistent with what judicial decisions

show: pedophiles who have sexually abused children are a threat to continue

doing so, and age does not remove the threat. See Mark Motivans & Tracey

Kyckelhahn, Federal Prosecution of Child Sex Exploitation Offenders 2006,

Bureau Just. Stat. Bull., Dec. 2007, at 1, 5 tbl.6 (reporting that 7.3% of offenders

arrested for sexual exploitation of children, including sex abuse, child

pornography, and sex transportation, are over the age of 60); see also Hall & Hall,

supra, at 457–58 (“The course of pedophilia is usually long term. In a study that

examined the relationship between age and types of sexual crimes, Dickey et al

found that up to 44% of pedophiles in their sample of 168 sex offenders were in

the older adult age range (age 40-70 years). When compared with rapists and

sexual sadists, pedophiles comprise 60% of all older offenders, indicating that

pedophiles offend in their later years at a greater rate than other sexual offenders.”

(footnotes omitted)). Moreover, as the government points out, the photos and

videos show that some of the worst of Irey’s acts do not require sexual potency.

All of this is consistent with Dr. Shaw’s testimony that: “You can’t be cured” of

pedophilia, and “Cures, you can forget about it.”

This Court has stated that the threat of recidivism by a pedophile who has

sexually abused a child is “appalling.” Pugh, 515 F.3d at 1201 (“As Congress has

117 found and as we have discussed, child sex offenders have appalling rates of

recidivism and their crimes are under-reported.”); see also United States v.

Allison, 447 F.3d 402, 405–06 (5th Cir. 2006) (“Congress explicitly recognized

the high rate of recidivism in convicted sex offenders, especially child sex

offenders.”). The Supreme Court has also noted “grave concerns over the high

rate of recidivism among convicted sex offenders and their dangerousness as a

class,” and has found that “[t]he risk of recidivism posed by sex offenders is

frightening and high.” Smith v. Doe, 538 U.S. 84, 103, 123 S. Ct. 1140, 1153

(2003) (quotation marks omitted). The Supreme Court has gone even further,

finding that “[w]hen convicted sex offenders reenter society, they are much more

likely than any other type of offender to be rearrested for a new rape or sexual

assault.” McKune v. Lile, 536 U.S. 24, 33, 122 S. Ct. 2017, 2024 (2002).33

Nor does the fact that when Irey gets out of prison he will be subject to

restrictions and supervised release, offer any guarantee that he will not commit

any crimes. In 2003 alone, for example, 12.8% of all federal offenders on

33 Judge Tjoflat’s separate opinion argues that we should not consider any of the decisions of the Supreme Court and this Court about the high recidivism rate of pedophiles and the special need for deterrence when punishing sexual crimes against children. Separate Op. of Tjoflat, J., at 225. The reason it gives for wanting us to pretend that those decisions do not exist is that they were not cited in the district court. Id. No member of this Court, certainly not the author of that opinion, has ever before suggested that in determining the law we ought to confine ourselves to the decisions that were cited in the district court. We, like all courts, have a duty to find and apply the correct law.

118 supervised release committed new crimes. Bureau of Justice Statistics, Dep’t of

Justice, Federal Criminal Justice Trends, 2003, at 37 tbl.29 (2006). Sex offenders

often fail to complete their treatment programs. See Loretta J. Stalans, Adult Sex

Offenders on Community Supervision: A Review of Recent Assessment

Strategies and Treatment, 31 Crim. Just. & Behav. 564, 573 (2004) (“Sex

offenders have high rates of either dropping out or being expelled from treatment.

Termination rates in the United States outpatient treatment programs have ranged

from one quarter to more than one half of adult sex offenders . . . .”). Supervised

release is revoked for 37.7% of the sex offenders who, like Irey, have a high

school diploma but not a college degree. James L. Johnson, Sex Offenders on

Federal Community Supervision: Factors that Influence Revocation, Fed.

Probation, June 2006, at 18, 19. And the experience of states which have had sex

offenders on supervised release, such as probation or parole, shows that it often

fails to prevent sex offender recidivism. See Patrick A. Langan et al., Bureau of

Justice Statistics, Recidivism of Sex Offenders Released from Prison in 1994, at

14 (2003) (“Of the 4,163 sex offenders rearrested for a new [state] crime, nearly 9

in 10 (87%) were on parole when taken into custody . . . .”).

Those studies are informative, but even without them we know that

supervised release is no guarantee that a criminal will not commit more crimes

119 when he gets out of prison. Courts of appeals regularly see cases in which serious

crimes were committed by those on supervised release. See, e.g., United States v.

Wilk, 572 F.3d 1229, 1232 (11th Cir. 2009) (possession of child pornography);

United States v. Williams, 322 Fed. App’x 846, 846 (11th Cir. 2009)

(unpublished) (aggravated child molestation and enticing a child for indecent

purposes);34 United States v. Horsfall, 552 F.3d 1275, 1278 (11th Cir. 2008)

(viewing child pornography); United States v. Trobee, 551 F.3d 835, 836 (8th Cir.

2009) (possession of child pornography); United States v. Azure, 539 F.3d 904,

905–06 (8th Cir. 2008) (robbery); United States v. Defoor, 535 F.3d 763, 763–64

(8th Cir. 2008) (aggravated assault); United States v. Eirby, 515 F.3d 31, 34 (1st

Cir. 2008) (sexual abuse of a minor); United States v. Ralph, 480 F.3d 888,

888–89 (8th Cir. 2007) (child molestation); United States v. Spraglin, 418 F.3d

479, 480 (5th Cir. 2005) (murder); United States v. Martin, 382 F.3d 840, 841 (8th

Cir. 2004) (rape); United States v. Marshall, 371 F.3d 42, 44 (2d Cir. 2004)

34 Unpublished opinions are not precedential, see 11th Cir. R. 36-2, and we do not cite Williams for any legal holding or point of law discussed in that opinion. Instead, we cite it solely as a source of facts about the crime committed while the defendant was on supervised release. See 11th Cir. R. 36-2, IOP 7 (“The court may cite to them . . . to establish the . . . facts of the case.”).

By contrast, Judge Tjoflat’s separate opinion cites as “precedent” on a point of law two unpublished opinions, Separate Op. of Tjoflat, J., at 219, which under our rules and our precedent cannot be precedent. See 11th Cir. R. 36-2; see also United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1358 n.15 (11th Cir. 2006) (Tjoflat, J.).

120 (robbery); see also McNaught v. United States, 646 F. Supp. 2d 372, 380

(S.D.N.Y. 2009) (arson).

Part of the problem may be understaffing and the resulting high case loads

of those who have the responsibility of doing the supervising. For example, as of

September 30, 2009, there were 14,987 people under post-conviction supervision

in the federal probation system in this circuit alone, with 12,216 of them on

supervised release. Admin. Office of the United States Courts, 2009 Annual

Report of the Director: Judicial Business of the United States Courts, tbl. E-2

(forthcoming spring 2010). And that does not count all of those on pre-trial

supervision or the thousands of presentence investigation reports that the federal

officers in this circuit have to complete each year. The nationwide situation was

summed up by Dr. Berlin (the same one who evaluated Irey for purposes of this

case), when he testified before Congress that: “Many of these parole and

probation people are stretched very thin. I think we want to be able to have them

have smaller case loads.” Protecting Our Nation’s Children from Sexual

Predators and Violent Criminals: What Needs to Be Done?, Hearing Before the

Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the

Judiciary, 109th Cong. 30 (2005) (statement of Fred S. Berlin, M.D., Associate

Professor, Johns Hopkins University).

121  Regardless of why so many convicted criminals on supervised release,

including sex offenders, commit new crimes, the fact is that they do. Supervised

release is better than unsupervised release, but it does not offer society the level of

protection from a convicted criminal that incarceration does. Despite that

undeniable fact, the district court found that Irey, one of the worst sex offenders

ever prosecuted in this circuit, had a low risk of recidivism, or would pose a low

risk when released at the end of the reduced sentence it imposed on him.

The government, however, has never attacked that factfinding as clearly

erroneous. Instead, it has insisted throughout this appeal that it is not challenging

any of the factfindings. As a result, for purposes of this appeal we will assume

that at the end of a 17 ½-year sentence—15 years and 3 months after it was

imposed—Irey would present a low risk of recidivism.35

That does not mean, however, that the sentence the district court imposed

will adequately “protect the public from further crimes of the defendant,” as §

3553(a)(2)(C) requires. A low risk is not the same as no risk. Adequate

35 This is another part of our opinion that Judge Tjoflat in his separate opinion has misread. His opinion operates under the erroneous assumption that we have rejected the district court’s finding that when Irey is released from the sentence it imposed on him and goes on supervised release he will pose a low risk of recidivism. See Separate Op. of Tjoflat, J., at 225–27. Although we have pointed out for the benefit of sentencing courts in the future the reasons and decisions indicating that the district court’s finding is wrong, because the government has not challenged the factfinding we have expressly accepted the low risk of recidivism finding for purposes of reviewing this sentence.

122 protection is a function of two variables: the level of risk that conduct will occur

and the level of harm that will be inflicted if that conduct does occur. See United

States v. Boyd, 475 F.3d 875, 877–78 (7th Cir. 2007) (upholding a sentencing

determination that the defendant’s acts created a substantial risk of bodily injury

to another person in part because “[d]angerousness is a function of the magnitude

of the harm that will occur if danger materializes and the probability that it will

materialize”). With child sexual abuse of the kind that we know Irey is capable of

and has committed, the harm is enormous and permanent. It can literally destroy

lives. Accordingly, even with an assumed low risk of recidivism following

release in 15 years and 3 months, imprisonment for that length of time does not

afford adequate protection from further crimes by him. The district court imposed

not one extra month over the statutory minimum for the purpose of protecting

society and its children from further crimes by Irey, stating: “I don’t think society

needs further protection from him, at least beyond the statutory minimum

sentence.” Given the magnitude of the harm that will occur if Irey does commit

more sexual crimes against children, that was a clear error in judgment.

5. Section 3553(a)(4) & (5)

District courts in sentencing, and courts of appeals in reviewing sentences,

must also consider the guidelines range and any pertinent policy statements in the

123 guidelines. 18 U.S.C. § 3553(a)(4)–(5).36 Of course, since Booker the guidelines

have been advisory, but they are still to be given respectful consideration. We

have not attempted to specify any particular weight that should be given to the

guidelines range and will not do so now. Our best discussion of the subject came

in United States v. Hunt, 459 F.3d 1180 (11th Cir. 2006), where we rejected “any

across-the-board prescription regarding the appropriate deference to give the

Guidelines.” Id. at 1184. We decided instead that, subject to review for

reasonableness, sentencing courts may “determine, on a case-by-case basis, the

weight to give the Guidelines, so long as that determination is made with

reference to the remaining section 3553(a) factors that the court must also

consider in calculating the defendant’s sentence.” Id. at 1185. In doing so, we

recognized that “Booker restored to district courts a measure of discretion that the

mandatory Guidelines had removed,” id. at 1184, but we added this important

caveat: “This discretion is bounded, of course, by Congress’s mandate to consider

the factors in section 3553(a), one of which, subsection four, is the Sentencing

Guidelines.” Id.

36 Section 3553(a)(2)(D) requires consideration of the need “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner,” and § 3553(a)(3) requires consideration of “the kinds of sentences available.” No one suggests that either of those two considerations is relevant to this appeal. Nor has anyone mentioned the § 3553(a)(7) factor, “the need to provide restitution to any victims of the offense.”

124  We stressed in Hunt that consideration of the advisory guidelines range is

important, because the guidelines “are an indispensable tool in helping courts

achieve Congress’s mandate to consider ‘the need to avoid unwarranted sentence

disparities’ among similarly situated defendants,” id., which is required by 18

U.S.C. § 3553(a)(6). Even though not bound by the guidelines, a sentencing court

may not give them so little consideration that it amounts to “not giv[ing] any real

weight to the Guidelines range in imposing the sentence.” Pugh, 515 F.3d at

1200; see also Booker, 543 U.S. at 264, 125 S. Ct. at 767 (“The district courts,

while not bound to apply the Guidelines, must consult those Guidelines and take

them into account when sentencing.”). See generally Kimbrough, 552 U.S. at

107, 128 S. Ct. at 573–74 (“[I]t is unquestioned that uniformity remains an

important goal of sentencing. As we explained in Booker, however, advisory

Guidelines combined with appellate review for reasonableness and ongoing

revision of the Guidelines in response to sentencing practices will help ‘to avoid

excessive sentencing disparities.’”); Rita, 551 U.S. at 348, 127 S. Ct. at 2463

(“The upshot is that the sentencing statutes envision both the sentencing judge and

the Commission as carrying out the same basic § 3553(a) objectives, the one, at

retail, the other at wholesale.”). In this case, the advisory guidelines range

calculated out at life imprisonment and was lowered to thirty years only because

125 that is the statutory maximum based on the way the crime was charged. See supra

at 12. In view of all of the facts and circumstances of this case, and given the

weakness of the district court’s explanation for deviating from the guidelines

range, it effectively gave the guidelines range no real weight in imposing the

sentence.

In addition to requiring consideration of the guidelines range, the

Sentencing Reform Act also requires that district courts consider any pertinent

policy statement issued by the Sentencing Commission. 18 U.S.C. § 3553(a)(5).

The policy statements in the guidelines that are relevant to this case address when

departures are appropriate in calculating the sentencing range. We are not dealing

with a guidelines departure decision here, but a § 3553(a) variance decision. Still,

even though the policy statements are in no way binding, § 3553(a)(5) requires

that they be considered in making decisions about variances. All of the policy

statements point in one direction in this case and that is away from a below-the-

guidelines sentence.

The guidelines state as a matter of policy that age “is not ordinarily relevant

in determining whether a departure is warranted,” at least not unless “the

defendant is elderly and infirm.” U.S.S.G. § 5H1.1. In the present case the

district court expressly considered Irey’s age at sentencing (50 years) in his favor,

126 even though he was not elderly or infirm.

The guidelines state as a matter of policy that “civic, charitable, or public

service . . . and similar prior good works are not ordinarily relevant in determining

whether a departure is warranted.” Id. § 5H1.11. Yet one of the reasons the

district court gave for varying downward was Irey’s civic work—that he had been

“a good person to his community.” The guidelines also advise, as a matter of

policy, that aberrant behavior may be used to support a downward departure only

if, among other things, “the defendant committed a single criminal occurrence or

single criminal transaction” that was “without significant planning” and “was of

limited duration.” Id. § 5K2.20(b). This case does not fit any of those

requirements, yet the district court used what amounted to an aberrant behavior

theory as part of the justification for its downward variance, stating: “I think other

than the acts of Mr. Irey, there’s no indication that he has engaged in any other

sort of criminal conduct or conduct representing poor character.”37

The guidelines state as a matter of policy that “[m]ental and emotional

conditions are not ordinarily relevant in determining whether a departure is

warranted,” except in circumstances not present here. Id. § 5H1.3. Yet in

37 The district court either overlooked the fact that Irey, a married man, had patronized prostitutes on a weekly basis for 15 years, or it thought that doing so does not “represent[ ] poor character.”

127 deciding to vary downward, the district court placed significant weight on Irey

having what it characterized as the “illness” of pedophilia. To the extent that the

district court relied on its belief that because he was a pedophile Irey had

diminished capacity to resist raping children, or that his criminal behavior was due

in substantial part to pedophilia, another policy statement is relevant. The

guidelines state that a court should not depart downward based on diminished

capacity where “the offense involved actual violence or a serious threat of

violence,” or where the defendant has been convicted of an offense under Chapter

110 of Title 18, which Irey was. Id. § 5K2.13.

There are also guideline policy statements advising that an upward

departure would be appropriate in this case. While Irey’s criminal conduct was so

extreme that the guideline calculations maxed out at life even without any upward

departures, § 3553(a)(2)(5) still expressly requires that those policy statements be

considered. As the Presentence Report in this case noted, the comment to § 2G2.1

advises that “[a]n upward departure may be warranted if the offense involved

more than 10 minors.” Id. § 2G2.1 cmt. n.6.38 Irey’s criminal conduct involved at

38 The cited comment to § 2G2.1 of the guidelines is technically not a policy statement, but the guidelines provide that it is to be treated as one. See U.S.S.G. § 1B1.7 (“Such commentary is to be treated as the legal equivalent of a policy statement.”); see also United States v. Smith, 568 F.3d 923, 927 n.1 (11th Cir. 2009) (“The commentary and application notes of the Sentencing Guidelines are authoritative, unless they are plainly erroneous, inconsistent with the regulation they interpret, or contrary to the Constitution or federal law.”).

128 least five times more than 10 minors, yet the district court varied downward. The

guideline policy statements also call for an upward departure “[i]f the defendant’s

conduct was unusually heinous, cruel, brutal, or degrading to the victim.” Id. §

5K2.8. Everyone agrees that what Irey did fits within that description, yet the

district court varied downward.

While not binding on the district court, the policy statements in the

guidelines, which it was required by the Sentencing Reform Act to consider, all

advise against a sentence below the guidelines range. The district court

effectively ignored them all.39

6. Section 3553(a)(6)

Section 3553(a) requires that district courts in sentencing, and courts of

appeals in reviewing sentences, “consider . . . the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found

guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). This factor is a particularly

important one when reviewing the substantive reasonableness of a sentence

because one of the primary purposes of appellate review of sentences is to iron out

differences in order to avoid undue disparity. Booker, 543 U.S. at 264, 125 S. Ct.

39 With one exception. The district court did impose a lifetime term of supervised release, as the policy statement in U.S.S.G. § 5D1.2(b) advises for all cases where the defendant was convicted of a sex offense against a minor.

129 at 767.

It is difficult to find a case involving sexual abuse of children that compares

to this one. The number of Irey’s victims (at least 50), the very young age (four,

five, and six years old) of some of them, the extreme nature of the abuse and

torture that he inflicted on them, the number of years it went on (four or five), and

the massive amount of graphic child pornography that he single-handedly

produced and distributed (at least 1,200 photographs or videos showing Irey

himself sexually abusing the children) combine to make his criminal behavior the

worst of the worst. Yet, the district court gave Irey a major downward variance,

resulting in a sentence just above the statutory minimum and more than a decade

below the guidelines range. That sentence is seriously out of line with sentences

imposed on other defendants whose criminal behavior, while atrocious in some

cases, was not as extreme as Irey’s or did not involve as many victims. See, e.g.,

United States v. Frank, 599 F.3d 1221 (11th Cir. 2010) (40-year sentence for

defendant who had twice traveled to Cambodia, where he paid three girls who

were between the ages of approximately 11 and 15 to engage in sexual acts with

him and to take sexually explicit pictures of those acts); United States v. Culver,

598 F.3d 740 (11th Cir. 2010) (60-year sentence for defendant who fell within

criminal history category II, had used tranquilizers and a stun gun to render his

130 13-year-old stepdaughter unconscious, and had produced a pornographic

videotape and four pictures depicting the unconscious girl); United States v.

Huskey, 349 Fed. App’x 495 (11th Cir. 2009) (70-year sentence for defendant,

who (like Irey) fell within criminal history category I, who engaged in anal, oral,

and vaginal sex with his daughter and penetrated her vagina with objects, while

she was between the ages of six and nine, recorded the abuse in photographs and

videotapes, and traded images of the abuse over the internet for other child

pornography);40 Sarras, 575 F.3d 1191 (100-year sentence for the defendant, who

fell within criminal history category I, who engaged in oral and vaginal sex with

his 13-year-old step-daughter approximately 23 times during a 4-month period

and photographed it on three of those occasions);41 United States v. Kapordelis,

569 F.3d 1291 (11th Cir. 2009) (35-year sentence for the defendant, who fell

within criminal history category I, who over a span of at least 20 years: drugged

two boys, aged 11 and 14, on three occasions before photographing their genitalia;

traveled abroad, where he molested and took digital videos and pictures of three

minors, some of whom he had drugged, and engaged in oral and anal sex with at

40 We include a number of unpublished opinions in this list, citing each one not for any holding but solely for the facts about the crime and the sentence imposed by the district court. See supra at 120 n.34. 41 The defendant in Sarras was sentenced in the same courthouse the same year as Irey but by a different district court judge.

131 least one 17-year-old; solicited sex from male prostitutes under the age of 18

while in foreign countries; drugged his 16-year-old second cousin and then

videotaped himself having sex with the minor; and possessed approximately

10,580 images and 400 videos of child pornography, some of which featured

victims he had personally molested); United States v. Wilcox, 324 Fed. App’x 805

(11th Cir. 2009) (45-year sentence for the defendant, a 50-year-old diabetic with

no prior criminal history, who took and posted on the internet pornographic

photographs of himself touching an 11-year-old girl, attempted to gain

commercially from the photographs, and possessed approximately 120 child

pornography images, including a sadistic picture of a 5-year-old girl wearing a

dog collar while being vaginally penetrated by an unidentified male); United

States v. Harris, 291 Fed. App’x 300 (11th Cir. 2008) (30-year sentence for a

defendant, who fell within criminal history category I, who filmed and

photographed seven 15- and 16-year-old boys, two of whom were his godchildren,

engaging in sexual acts with each other in his bedroom, shared videos and

photographs depicting those occurrences with others, and on one occasion invited

his friend over to watch two underage males engage in sexual activities and then

filmed as his friend had sex with one of them); United States v. Carter, 292 Fed.

App’x 16 (11th Cir. 2008) (45-year sentence for the defendant, with no specified

132 criminal history, who possessed approximately 4,800 image, text, and movie files

depicting or describing the sexual exploitation, including bondage, of at least

eleven different young girls, ages 7 to 14; some of those files were produced and

distributed by the defendant himself and depicted him touching the genitalia of

two young girls); United States v. Oliver, 281 Fed. App’x 898 (11th Cir. 2008)

(130-year sentence for the defendant, with no criminal record that was mentioned,

who produced images of himself molesting a single victim, his 6-year-old

granddaughter, and distributed those images over the internet); United States v.

Hodnett, 210 Fed. App’x 949 (11th Cir. 2006) (30-year sentence for the

defendant, who fell within criminal history category I, who possessed at least 600

images of child pornography, some of which depicted prepubescent minors

engaged in sexual activity, traded images of child pornography over the internet,

and had in the past engaged in the following sexual activities with minors:

kidnaping and raping a 6-year-old Vietnamese girl in 1969 while serving in

Vietnam; molesting and engaging in sexual intercourse with his two step-

daughters in the 1970s; and engaging in oral sex with a 6-year-old girl in 2004);

United States v. Foster, 209 Fed. App’x 942 (11th Cir. 2006) (life imprisonment

for the defendant who fell within criminal history category I, and who during a 4-

year period engaged in oral and vaginal sex with a single victim who was less than

133 12 years old when the abuse began); United States v. Johnson, 451 F.3d 1239

(11th Cir. 2006) (140-year sentence for the defendant, who had two prior

convictions for lewd acts in front of minors, who sexually abused and

photographed three boys between the ages of 8 and 16 over an approximately 6-

year period, produced at least 150 pornographic images of the victims, transmitted

an unknown number of those images over the internet, and either possessed or

transmitted at least 24 videos of children engaging in sexually explicit conduct);

United States v. Hersh, 297 F.3d 1233 (11th Cir. 2002) (105-year sentence for the

defendant, who fell within criminal history category I, and who traveled to third

world countries during a period of 20 years and enticed at least eight boys,

between 8 and 17 years old, to engage in sex with him, encouraged them to

engage in sex with a fellow pedophile, convinced one Honduran family to allow

their minor son to live with him illegally in the United States, and possessed at

least 120 images of child pornography).

While the criminal conduct of all the defendants in the cited cases ranges

from serious to truly depraved, none of it is worse than Irey’s criminal conduct,

yet he received a sentence far more lenient than they did. The lesser sentence the

district court imposed on Irey by means of a major downward variance creates a

substantial disparity. The disparity arises not because the defendants in the cited

134 cases were denied a downward variance they should have received and were

sentenced too harshly, but because Irey was given a downward variance he

should not have received and was sentenced too leniently. The unreasonableness

is not in the sentences imposed in the cited cases but in the sentence imposed in

this case.42

7. What “It Comes Down To”

The district court suggested that these factors weighed in Irey’s favor: he

was 50 years old; his family still loved him; when he was not consorting with

prostitutes in this country or raping, sodomizing, and torturing little girls in

Cambodia, he was not such a bad guy; the “illness” of pedophilia rendered his

criminal acts “not purely volitional”; and he was a victim of child pornography on

the internet. The court discounted the value of general deterrence for sexual

crimes against children. It thought that Irey would present a low risk of

42 Judge Barkett’s dissenting opinion argues that we cannot assess whether Irey is similarly situated to any defendant convicted of sexually abusing children “without the benefit of the entirety of the sentencing records of all [those] defendants.” Dissenting Op. of Barkett, J., at 254–55 n.1. The statutory command is to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). That information can be discerned from the appellate opinion in most cases, including those that we have cited. See also Kimbrough, 552 U.S. at 108, 128 S. Ct. at 574 (holding that the statute requires consideration of sentences of other courts in order to comply with § 3553(a)(6)’s instruction that the need to avoid unwarranted sentencing disparities be taken into account). Any requirement that the record in other cases be scoured before the sentences in those cases can be considered would render it impossible to comply with the statute, and we will not interpret the statute in a way that effectively renders it a nullity, see, e.g., Hibbs v. Winn, 542 U.S. 88, 101, 124 S. Ct. 2276, 2286 (2004), and ignores what the Supreme Court has said about it.

135 recidivism once released and, as a result, no time above the statutory minimum

was needed to protect society from him. The result the court reached created an

unwarranted sentence disparity among defendants who have committed

comparable or less egregious offenses involving the sexual abuse of children.

Along the way to its final sentencing decision the district court, as we have

explained, committed a number of subsidiary errors in judgment, but even if we

disregard all of them there remains one overriding clear error in judgment that

renders the downward variance sentence substantively unreasonable.

After discussing the other factors, the district court said: “It comes down to

my view of what promotes respect for the law and provides just punishment.”

The district court was right about the importance of the § 3553(a)(2)(A) factor,

which requires consideration of the need for the sentence imposed “to reflect the

seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense.” But the court was wrong, it committed a clear error

in judgment, in deciding that those purposes could be served by a major

downward variance to a point closer to the statutory minimum sentence than it is

to the guidelines range. The district court’s leap from the advisory guidelines

sentence of 30 years down to a just-above-minimum sentence of 17 ½ years does

not reflect the seriousness of and provide just punishment for Irey’s rape, sodomy,

136 and sexual torture of at least fifty children, acts that he committed “many many

times” over a four- or five-year period, and his production and distribution of one

of the worst series of child pornography on the internet. Nor does it promote

respect for the law.

For all of the reasons we have explained, no downward variance from the

guidelines range is reasonable in this case. Nothing less than the advisory

guidelines sentence of 30 years, which is the maximum available, will serve the

sentencing purposes set out in § 3553(a). We are left with the definite and firm

conviction that it was substantively unreasonable, a clear error in judgment, an

abuse of discretion, for the district court to conclude to the contrary. Were we to

hold otherwise, “we would come perilously close to holding that appellate review

is limited to procedural irregularity,” and that the Supreme Court has “eviscerated

appellate review at the same time that it has mandated the appellate courts to

continue to review sentences for reasonableness.” Pugh, 515 F.3d at 1203–04.

That paradoxical holding would throw us back a quarter of a century into the pre-

Sentencing Reform Act era, with its “non-system in which every judge is a law

unto himself or herself,” Frankel, Jail Sentence Reform, at E21, an era that is gone

for good.

In reaching this conclusion, we are not, as Judge Tjoflat asserts, usurping

137 the district court’s sentencing role.43 Separate Op. of Tjoflat, J., at 215–17.

Instead, we are performing our sentence review role. Again, the Supreme Court

has instructed us that “district judges at times make mistakes that are substantive”

and “impose sentences that are unreasonable,” and we “exist to correct such

mistakes when they occur.” Rita, 551 U.S. at 354, 127 S. Ct. at 2466–67. In the

course of reviewing this sentence, we have determined that, given the extreme

facts in the case, a downward deviation from the guidelines range is not

substantively reasonable. We have made that decision after studying the record of

the sentence proceedings, which is complete; considering the district court’s

findings and explanation, which are adequate for the purpose; granting the district

court’s decision the full measure of deference that it is due; and considering all of

the arguments of the parties for and against the reasonableness of the sentence.

That is what appellate courts are supposed to do.44

43 Nor are we, as Judge Tjoflat’s opinion charges, taking a step toward creating, through judicial decisions, a system of mandatory sentencing ranges “that is identical in all relevant respects to [the pre-Booker] mandatory-Guidelines sentencing range[s].” Separate Op. of Tjoflat, J., at 229 n.98. We are simply doing our duty, as prescribed in Rita, to review the substantive reasonableness of the sentence imposed in this case. 44 Judge Tjoflat’s separate opinion goes to great lengths to accuse us of addressing arguments that were not raised and preserved in the district court. See Separate Op. of Tjoflat, J., at 215–16, 221–27. Much of that opinion’s analysis is based on the faulty premise that the government made only a “simple objection” that Irey’s sentence is “unreasonable.” Id. at 216. As we have already explained, however, the government has been arguing for a 30-year sentence ever since it filed the sentencing memorandum in the district court. See supra at 13–14. That memorandum emphasized the sheer magnitude and utter depravity of Irey’s criminal conduct and urged the court to respect Congress’ findings that “departures should be extremely rare in

138 child sex crime cases” because of the seriousness of those crimes. The government specifically argued that a variance would not be justified even if Irey’s risk of recidivism was low, his capacity was diminished, his behavior was aberrant, his family ties and responsibilities were significant, and his decisions were clouded by his pedophilia. Indeed, the government said that “any variance under 18 U.S.C. § 3553(a) would be unreasonable because there is nothing unusual about the nature or circumstances of this offense or the defendant’s personal characteristics.” The government argued in its sentencing memorandum that “[i]f this case is atypical, it is because of aggravating, not mitigating, factors.” And it took the same position at the sentence hearing. See supra at 27–30.

The government’s objection that Irey’s sentence was substantively unreasonable was sufficient to preserve the specific grounds for the objection that it had already raised in its sentencing memorandum and in its arguments during the sentence proceeding. Especially given the context of the sentence proceedings, the government did not need to regurgitate its arguments in favor of a 30-year sentence after the court had pronounced the sentence; it is enough that the government objected to the downward variance sentence as unreasonable. See United States v. Maurice, 69 F.3d 1553, 1557 (11th Cir. 1995) (holding that a general objection after the sentence was announced is sufficient to preserve supporting arguments made before it was announced where the reasons for the objection are clear); see also United States v. Candelario, 240 F.3d 1300, 1304–05 (11th Cir. 2001) (Tjoflat, J.) (citing, with approval, a circuit court decision “reviewing the defendant’s sentence under preserved error review where the defendant argued in his sentencing memorandum that the amount of drugs for which he was to be sentenced had to be pleaded in the indictment and found by the jury beyond a reasonable doubt” (emphasis added) (quotation marks omitted)); see also United States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009); United States v. Guthrie, 557 F.3d 243, 255 (6th Cir. 2009); United States v. Curry, 461 F.3d 452, 459 (4th Cir. 2006) (concluding that the government, “by vigorously arguing for a sentence within the Guidelines range throughout the sentencing hearing,” had preserved its objection to the sentence even though it did not object at the end of the sentencing colloquy); United States v. Shumard, 120 F.3d 339, 340 (2d Cir. 1997).

We have specifically recognized that so long as the government raises “the crux of its objection to the district court’s sentence,” it is not required to articulate all the details of its position. United States v. Smith, 39 F.3d 1143, 1146 (11th Cir. 1994); see also United States v. Livesay, 484 F.3d 1324, 1327–29 & 1330 n.7 (11th Cir. 2007) (concluding that the government’s objection to the extent of the downward departure also preserved an objection “to the reasonableness of the overall sentence”), vacated on other grounds, 552 U.S. 1092, 128 S. Ct. 872 (2008); United States v. Arevalo-Juarez, 464 F.3d 1246, 1249–50 (11th Cir. 2006) (stating that even though the district court did not grant a departure the government’s argument that a departure was unwarranted was enough to preserve the issue of whether the sentence was otherwise unreasonable); see also United States v. Carlson, 498 F.3d 761, 763 & n.2 (8th Cir. 2007); United States v. Pineiro, 470 F.3d 200, 204–05 (5th Cir. 2006) (“We have never required a party to express its objection in minute detail or ultra-precise terms.”).

139  This is one of those unusual cases where the top and bottom of the

guidelines range are the same; both are 30 years. There can be no upward

variance because the statutory maximum is also 30 years. As a result, our holding

that no downward variance is reasonable under the totality of the facts and

circumstances of this case means that on remand the sentence must be 30 years.45

There is no other sentence left. When we vacate a district court’s judgment and

remand, we routinely include in the bottom line of our decision that we are

On a similar point, Judge Tjoflat’s opinion accuses us of implicitly overruling United States v. Jones, 899 F.2d 1097 (11th Cir. 1990), overruled on other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993) (en banc), by allowing an unexplained objection that a sentence is “substantively unreasonable” to trigger the equivalent of a new sentencing hearing on appeal. See Separate Op. of Tjoflat, J., at 78 & n.86. Our decision, however, is consistent with Jones and its progeny. In United States v. Weir, 51 F.3d 1031 (11th Cir. 1995), we explained that “[i]f the relevant objection is raised after the presentation of the [pre-sentence investigation] report, . . . but before the actual imposition of the sentence, Jones is satisfied.” Id. at 1033. Specifically, in Weir, we held that Jones was satisfied because “[t]he district court clearly understood the Government’s position and specifically rejected it.” Id. Similarly, we held in Maurice that the rationales behind Jones “are served so long as the objection to be preserved and the grounds for the objection are clear to the sentencing court at the conclusion of the hearing.” 69 F.3d at 1557. As a result, “a party is not required to reargue a general objection made after sentencing if the argument in support of that objection has previously been presented to the sentencing court and the reasons for the objection remain clear after the sentence is pronounced.” Id. The government did enough to preserve all of the arguments in favor of a 30-year sentence here. 45 Judge Tjoflat’s separate opinion points out that in none of the other cases where we have vacated a sentence as unreasonable have we directed the district court to enter a particular sentence. Separate Op. of Tjoflat, J., at 227–28 & n.96. That is true, but in none of those four other cases did we have both extreme facts and circumstances rendering any downward variance unreasonable and a pinpoint guidelines range—one where the bottom and top were the same sentence. Because this is an unprecedented situation, it adds nothing to label our decision an “unprecedented step.” Id. at 227. Whatever we do in a situation that has never been before us is, by definition, an unprecedented step one way or the other.

140 sending the case back for “proceedings consistent with this opinion.” Because we

have determined that a downward deviation from the guidelines range in this case

is unreasonable, it follows that the only action on remand that will be consistent

with this opinion is resentencing within the guidelines range, which necessarily

means a sentence of 30 years.46

V. CONCLUSION

Because of the substantial deference district courts are due in sentencing,

we give their decisions about what is reasonable wide berth and almost always let

them pass. There is a difference, though, between recognizing that another

usually has the right of way and abandoning one’s post. We will not quit the post

that we have been ordered to hold in sentencing review and the responsibility that

goes with it. The Supreme Court has instructed us that “[i]n sentencing, as in

other areas, district judges at times make mistakes that are substantive,” and that it

is our duty “to correct such mistakes when they occur.” Rita, 551 U.S. at 354, 127

46 Having determined that no downward variance is reasonable, it would be senseless to remand with instructions that permit the district court to downwardly vary and resentence below the guidelines range again. If the district court on remand resentenced Irey to 20 years, we would have to vacate that sentence and send the case back. If the court then tried out a sentence of 22.5 years, we would have to vacate that sentence and send the case back again. And so on, back and forth the case would go in a pointless ping pong game. To borrow Judge Tjoflat’s hyperbolic language, such proceedings would “gobble[ ] up judicial resources” that could be better spent elsewhere. Separate Op. of Tjoflat, J., at 236. Doing as he suggests would prevent the first appeal from a sentence from being “the main event” for determining whether a sentence is substantively reasonable and would instead send “the unmistakable message that [the first appeal of a sentence] is nothing but a tryout on the road.” Id. at 231. That would be, to use his term, “shocking.” Id. at 216.

141 S. Ct. at 2466–67.

In this case the district court made a substantive mistake, a clear error in

judgment, by unreasonably varying downward from the advisory guidelines

sentence when no sentence less than it is sufficient to fulfill the purposes set forth

in the Sentencing Reform Act. To do our duty to correct that mistake, we vacate

the sentence the district court imposed and remand with instructions that the

defendant is to be resentenced within the guidelines range.

VACATED AND REMANDED.

142 HILL, Circuit Judge, concurring:

I concur in the opinion for the court and in the judgment reversing and

remanding with instructions.

I do so in spite of the fact that I originally concurred in the now vacated

panel opinion, United States v. Irey, 563 F.3d 1223(11th Cir.), vacated, 579 F.3d

1207 (11th Cir. 2009).

I should explain.

That original concurrence was based entirely on my perception of the extent

of discretion due the trial judge. The sentence was not the right one, in my

opinion, but I stretched discretion to cover it. I tend, properly I think, to be

reluctant to limit the discretion of a trial judge who is closer to a case than its

record can bring me.

Since our panel opinion was vacated, I have persisted in putting one

question to counsel and colleagues: “If this case does not demand the maximum

sentence authorized by Congress for violation of 18 U.S.C. § 2251(c), what case

would?” No one has persuaded me that any is likely to be encountered.

That case, more aggravated than this, remained elusive.

After oral argument and the court’s conference, I finally realized that I had

been putting a question that has no answer because it is predicated upon the wrong

143 assumption. It asks that this case be assumed not to demand the maximum

sentence. But I now realize that the elusive maximum sentence case, which I

sought, was right here before me.

This case is the case demanding the maximum sentence.

Therefore, the sentence imposed, remarkably reduced from what the

Congress authorized, does abuse discretion. And if it does, then I would abdicate

my duty should I vote to leave it intact.

So I vote to reverse.

144 TJOFLAT, Circuit Judge, specially concurring in part and dissenting in part:

I concur with the court’s judgment that Irey’s sentence must be vacated but

dissent as to the instruction that the district court sentence Irey to 30 years’

imprisonment. I write separately because in reaching this result, the court asks the

wrong question and gives the wrong answer. Today’s decision cements this

circuit’s approach to one of the most difficult questions posed by United States v.

Booker, 543 U.S. 404, 125 S. Ct. 738 (2005): what is the proper role of the courts

of appeals now that the once mandatory Guidelines are only advisory?

The court asks whether Irey’s sentence achieves the purposes of 18 U.S.C.

§ 3553(a). After conducting its own § 3553(a) analysis, the court answers “no,”

then proceeds to decide what would be an appropriate sentence: 30 years’

imprisonment. It orders the district court to impose this sentence on remand. It

does so on the basis of new evidence and arguments that the Government never

presented to the district court. In short, we have assumed the role of resentencer.

Resentencing defendants on appeal does immense harm to this court’s

institutional relationship with the district courts by transforming the district

court’s sentencing proceeding from the “main event” to a “tryout on the road.”

This, in turn, creates perverse incentives for the parties and the district court,

misallocates judicial resources, and creates disrespect for the rule of law.

145  In my view, the right question for us to ask is whether the district court

abused its discretion. The correct answer is “yes” because its factfindings as best I

can understand them cannot be reconciled with the sentence it imposed. The

correct disposition is to vacate and remand for resentencing. With this approach,

we would preserve our traditional function as an appellate court and ensure that

the district court is the forum for the main event, which is required by United

States v. Booker, 543 U.S. 404, 125 S. Ct. 738 (2005).

To understand the roles Booker assigned to the district court, the

Sentencing Commission, and the courts of appeals, it is necessary to see the

evolution of these roles over time. This opinion is therefore organized as follows:

part I describes the sentencing model before and under the Sentencing Reform Act

(the “SRA”)1 before Booker, part II sets out the sentencing model after Booker,

part III applies abuse of discretion review to the case at bar, and part IV surveys

the court’s approach and resulting institutional harm. Part V concludes.

I. Pre-Booker

A. Pre-SRA

Understanding the sentencing model I apply today requires understanding

the deeply rooted purposes of sentencing and their evolution in American criminal

1 Sentencing Reform Act of 1984, Pub. L. No. 88-473, 98 Stat. 1987 (codified, as amended, in scattered sections of 18 and 28 U.S.C.).

146 law.

Prior to the American Revolution, colonial courts fashioned sentences with three basic purposes in mind: to punish the offender for his crime, thereby satisfying society’s desire for retribution (“punishment”); to deter others from committing the same crime by demonstrating its disadvantageous consequences (“general deterrence”); and to incapacitate the wrongdoer, so as to protect society from further criminal activity (“specific deterrence” or “incapacitation”).

United States v. Scroggins, 880 F.2d 1204, 1206 (11th Cir. 1989). In the 1800s,

penological experts became “dissatisfied with the failure of prisons to rehabilitate

inmates,” and rehabilitation became a fourth basic purpose of sentencing. See

Arthur W. Campbell, The Law of Sentencing § 1:2 (2009). The American

tradition thus embraced four purposes of sentencing—punishment, general

deterrence, specific deterrence, and rehabilitation;2 this tradition has continued to

the present day.

An early model of sentencing that combined these four purposes was the

“medical model,” so named because penological experts believed that proper

measures taken during imprisonment could “cure” offenders, allowing them to

reenter society as productive members. Accordingly, rehabilitation received more

weight than the other three purposes of sentencing under the medical model.

Under the medical model, sentencing responsibilities were divided between the

2 See United States v. Brown, 381 U.S. 437, 458, 85 S. Ct. 1707, 1720 (1965).

147 district court and the Parole Board.3 District courts imposed indeterminate

sentences that were monitored by a Parole Board, meaning that a judge would

impose a sentence that had a minimum term of confinement and a maximum term

of confinement, but “allow[ed for] the possibility of release sometime between the

expiration of those terms[, with] the date and conditions of release before the

maximum term” determined by the Parole Board.4 Campbell, supra, § 4:2.

District courts fashioned the minimum and maximum bounds of the

sentence in accordance with the four traditional purposes of sentencing. They

could consider all facts they thought were relevant to these purposes,

“conduct[ing] an inquiry broad in scope, largely unlimited either as to the kind of

information . . . or the source from which it [could] come.” United States v.

Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 591 (1972).5 Because they could

3 The system started with the U.S. Board of Parole. It was redesignated the U.S. Parole Commission by the Parole Commission and Reorganization Act of 1976, Pub. L. No. 94-233, § 4202, 90 Stat. 219, 219 (1976). For convenience, I refer to the Parole Commission as the Parole Board. 4 The Parole Board “monitor[ed] the offender’s rehabilitative progress. When it decide[d] that the offender [was] fully rehabilitated, the board release[d] the offender on parole. Thus, rehabilitation [was] the dominant goal of the medical model; punishment, general deterrence, and incapacitation [were] achieved only incidentally to the offender’s rehabilitative incarceration.” United States v. Scroggins, 880 F.2d 1204, 1207 (11th Cir. 1989). For more on the model, see id. at 1207 n.7 (detailing the variety of sentencing options available to the district court). 5 For example, a court could consider the manner in which the offender committed the crime, which included any circumstances that aggravated or mitigated the offender’s criminal blameworthiness, because the manner was relevant to the purpose of punishment. Likewise, it could consider aspects of the defendant’s background because they were relevant to specific

148 consider a broad array of facts, they enjoyed “wide discretion in determining what

sentence to impose.” Id.6

Although the district court set the bounds of the sentence, the Parole Board

was given

discretion to determine when a prisoner ha[d] reached that point in his rehabilitation process at which he should be released under supervision to begin his readjustment to life in the community. By [the district court’s] keeping the minimum low, the prisoner [was] encouraged “to earn favorable consideration for parole in accord with the public policy embodied in the parole statutes.”7

Garafola v. Benson, 505 F.2d 1212, 1217 (7th Cir. 1974) (internal citations

omitted). The Parole Board therefore determined how much of the sentence

would be served beyond the minimum term. Thus, although the Parole Board

could not review the parameters the district court set on the offender’s sentence, it

could re-sentence the offender within the parameters. Because the parameters

were often wide—the district court could not accurately predict how long the

offender would need for rehabilitation, the model’s driving factor—the Parole

deterrence and rehabilitation. 6 See also Wasman v. United States, 468 U.S. 559, 563, 104 S. Ct. 3217, 3220 (1984) (“It is now well established that a judge or other sentencing authority is to be accorded very wide discretion in determining an appropriate sentence.”). 7 See also Morrissey v. Brewer, 408 U.S. 471, 477–478, 92 S. Ct. 2593, 2598 (1972) (explaining that the purpose of releasing offenders on parole was “to help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed”).

149 Board was a powerful actor in the medical model.

The courts of appeals, on the other hand, had virtually no role under the

medical model. So long as the sentence was within statutory limits, it “was, for all

practical purposes, not reviewable on appeal.” Koon v. United States, 518 U.S.

81, 96, 116 S. Ct. 2035, 2045 (1996).8 Because sentences were not subject to

appellate review, judges rarely explained the reasoning behind the sentences

imposed, and there is little direct evidence from the pre-SRA era of how judges

made sentencing decisions. Marc Miller, Purposes at Sentencing, 66 S. Cal. L.

Rev. 413, 451–52 (1992). So while a judge sentencing an offender to prison

implied that imprisonment was needed for punishment, general and specific

deterrence, and rehabilitation, there was little evidence of the relative weights the

judge assigned to those purposes.

Therefore, prior to the SRA, district judges had wide discretion in imposing

sentences, but the Parole Board ultimately had control over how much of the

sentence would be served. The courts of appeals played a very limited role.

B. SRA

8 Prior to the SRA, Fed. R. Crim. P. 35(a) allowed the “court to correct an illegal sentence at any time.” An illegal sentence was not “within the limitations set forth in the statute under which it [was] imposed.” Dorszynski v. United States, 418 U.S. 424, 431, 94 S. Ct. 3042, 3047 (1974).

150  By the 1970s, the medical model was falling out of favor.9 Congress had

come to reject the medical model’s core premise—that prison sentences could

rehabilitate offenders—as well as its unfair results. Offenders who committed the

same crime served wildly different sentences because of the district courts’

unfettered discretion and because the Parole Board determined how much of a

sentence would actually be served.10 See S. Rep. No. 98-225, at 38 (1984),

reprinted in 1984 U.S.C.C.A.N. 3182, 3221.

To address the vices of the medical model—mainly unwarranted sentencing

disparity—Congress enacted the SRA, which codified the traditional purposes of

sentencing as the

need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

18 U.S.C. § 3553(a)(2).11 These factors mapped onto punishment, general

9 See Michael Vitiello, Reconsidering Rehabilitation, 65 Tul. L. Rev. 1011, 1018–26 (1991), for an explanation of some of the critiques of the medical model in the 1970s. 10 This was especially unfair because the length of the sentences offenders served, based on the Parole Board’s release decisions, did not correlate with their likelihood to recidivate. 11 By codifying these purposes, Congress defined the factors relevant to the traditional purposes of sentencing in ways that sometimes differed from the common law. Whereas

151 deterrence, specific deterrence, and rehabilitation, respectively. Unlike under the

medical model, however, rehabilitation was no longer the dominant concern; in

fact, while rehabilitation could be a relevant factor in sentencing, it could not

drive a prison sentence. 18 U.S.C. § 3582(a) (directing that the court, when

considering a prison sentence, recognize that “imprisonment is not an appropriate

means of promoting correction and rehabilitation”). Congress feared that

allowing the district court to fashion a sentence based on these purposes in each

individual case would perpetuate the unwarranted sentencing disparity that

plagued the medical model. Congress therefore created the United States

Sentencing Commission (the “Commission”) and tasked it with devising

sentencing guidelines that would dictate offenders’ sentences.

The new model had three main goals: (1) honesty, (2) fairness, and (3)

proportionality. See United States Sentencing Commission, Guidelines Manual, §

1A1.1(3) (Nov. 1, 2009) (hereinafter “U.S.S.G.”); United States v. Booker, 543

U.S. 220, 264, 125 S. Ct. 738, 767 (2005).12 To achieve honesty, Congress

punishment historically was driven by retribution, see Scroggins, 880 F.2d at 1206, 18 U.S.C. § 3553(a)(2)(A) defined it as encompassing the above considerations. 12 Because, prior to the SRA, the sentence the judge imposed was not the sentence the offender served, neither the public nor the offender perceived the judge’s sentence as “honest.” See Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, 17 Hofstra L. Rev. 1, 4 (1988); see also U.S.S.G. Ch.1, Pt.A, intr. comment. Furthermore, because of “the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders,” sentences were not “fair.” U.S.S.G. Ch.1, Pt.A, intr. comment. Lastly, because the system did not “impose[] appropriately different sentences for criminal

152 abolished parole and replaced indeterminate with determinate sentencing. Judges

sentenced offenders to fixed terms and offenders served the full prison sentence

imposed.13 To achieve fairness, Congress severely curtailed the district court’s

discretion to fashion a sentence by requiring that, in typical cases, the court

impose a sentence within the range identified by sentencing guidelines. To

achieve proportionality, Congress replaced the theory that sentences should be

imposed primarily to rehabilitate offenders with the theory that sentences should

be no harsher than necessary to serve the four traditional purposes of sentencing.

The Sentencing Commission’s Guidelines and the courts’ role in sentencing were

to reflect these goals.

The rest of this subpart explains how the SRA divided the roles in

sentencing between the Commission, the district courts, and the courts of appeals,

respectively.

conduct of differing severity,” sentences were not “proportional.” Id. 13 An offender could still serve less than the full sentence, however, if awarded credit for satisfactory behavior while incarcerated. 18 U.S.C. § 3624(b) provides:

a prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner’s life, may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations.

Hence, offenders served the sentence imposed less good time.

153  1. The Sentencing Commission’s Role

The SRA charged the Commission with designing guidelines that would

direct the district courts how to fashion sentences to fulfill § 3553(a)(2)’s

sentencing purposes in a way that ensured honesty, proportionality, and fairness.

See 28 U.S.C. § 991(b)(1); id. § 994(f). Assembled in a Guidelines manual, the

Guidelines resembled a computer program. To impose a sentence, all a district

judge had to do was to input information requested by the manual and the manual

would generate a sentencing range.

Every sentence had an offense- and an offender-based component. United

States v. Mogel, 956 F.2d 1555, 1558 (11th Cir. 1992); see 28 U.S.C. § 994(b)

(instructing that the Commission “establish a sentencing range” for “each category

of offense involving each category of defendant”). The offense-based component

correlated mostly to the sentencing purposes of punishment and general

deterrence; the offender-based component correlated mostly to the purposes of

specific deterrence and rehabilitation. See Mogel, 956 F.2d at 1559. The district

court found the sentence it was to impose by consulting a table in the Guidelines

manual: the table’s Y axis specified offense levels; its X axis specified categories

of offenders. See U.S.S.G. § 1B1.1; id. Ch.5, Pt.A (“Sentencing Table”) The

table listed an appropriate sentencing range for each combination of offense level

154 and category of offender.

a. The Offense Level

Roughly speaking, the offense level was the Guidelines’ proxy for the need

for the sentence “to reflect the seriousness of the offense, to promote respect for

the law, and to provide just punishment for the offense,” as well as to “afford

adequate deterrence to criminal conduct,” 18 U.S.C. § 3553(a)(2)(A)–(B). See

Scroggins, 880 F.2d at 1208. As an initial matter, the Commission had to

determine what type of conduct would factor into the offense level, namely

whether to base sentences upon the actual conduct in which the defendant engaged regardless of the charges for which he was indicted or convicted (“real offense” sentencing), or upon the conduct that constitutes the elements of the offense for which the defendant was charged and of which he was convicted (“charge offense” sentencing).

U.S.S.G. § 1A1.1 (initial policy statement).14

It settled on a hybrid approach, devising an offense level with three

components: (1) a “base offense level,” (2) “specific offense characteristics,” and

14 The Commission explained the differences between a real offense and charged offense sentencing model:

A bank robber, for example, might have used a gun, frightened bystanders, taken $50,000, injured a teller, refused to stop when ordered, and raced away damaging property during his escape. A pure real offense system would sentence on the basis of all identifiable conduct. A pure charge offense system would overlook some of the harms that did not constitute statutory elements of the offenses of which the defendant was convicted.

U.S.S.G. § 1A1.4(a).

155 (3) “adjustments.” Scroggins, 880 F.2d at 1209–10.15 The base offense level

reflected the charged conduct. Rather than draft a guideline for each offense in

the United States Code, the Guidelines grouped offenses and specified an offense

level that reflected the average seriousness of the group.16 Id. at 1209. The

specific offense characteristics were tailored to each category of offense17 and

captured some of the offender’s real conduct in committing the offense of

conviction. The adjustments applied to all offenses regardless of their category.

Some but not all of the adjustments related to the charged offense. Id. at

1209–10.18

15 The jury found or the guilty plea established the charged offense conduct, and the district court found the facts relevant to the specific offense characteristics or the adjustments. See infra note 24. 16 As instructed by 28 U.S.C. § 994(b), the Commission classified each federal crime according to its severity, then placed it together with the crimes similarly classified in a “category of offenses.” Because all of the crimes in a category were of like severity, all had the same base offense level. For example, the base offense level for approximately 130 different theft offenses in the United States Code is the same, established by U.S.S.G. § 2B1.1 (Larceny, Embezzlement and Other Forms of Theft). 17 The specific characteristics for robbery, for example, include whether property was taken from a financial institution or post office, whether and how a firearm was used, whether people were injured, whether a carjacking occurred, and the dollar value of the loss. U.S.S.G. § 2B3.1. 18 The Commission rejected a pure charge offense system because it could have achieved only unfair uniformity: it would have treated unlike offenders alike given that the criminal code is not written to take account of the manner in which the offenses are committed. See Stephen Breyer, supra note 12 at 9–10. The Commission rejected a pure real offense system—a system that would have considered all possible real conduct, not only selected specific offense characteristics or adjustments—because it would have been administratively unwieldy: innumerable factual permutations might have a bearing on the need for punishment and general deterrence. Id. at 10–12. The hybrid model was a compromise to avoid the primary pitfalls of

156  b. The Offender Characteristics

The category of offender was the Commission’s proxy primarily of the need

for the sentence “to protect the public from further crimes of the defendant.” 18

U.S.C. § 3553(a)(2)(C); see also Mogel, 956 F.2d at 1558–59. The Commission

categorized offenders almost exclusively by criminal history as determined by

prior convictions.19 See U.S.S.G. § 4A1.1; see also Mogel 956 F.2d at 1560

(noting that the “offender-based component almost entirely relies on the

offender’s criminal history”). The Commission settled on criminal history

because it was a workable way to achieve sentencing uniformity. See Stephen

Breyer, The Federal Sentencing Guidelines and the Key Compromises upon

Which They Rest, 17 Hofstra L. Rev. 1, 19–20 (1988). Criminal history based on

convictions could be neatly categorized and taken into account by the Guidelines

matrix. The myriad other factors that might help predict recidivism were difficult

to categorize and even more difficult to quantify—age, for example, might cut

differently in different cases—and including them would make the sentencing

both. 19 The Guidelines did allow for a departure if “reliable information indicates that the defendant’s criminal history category substantially [over- or] under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3.

157 table unworkable.20 See id.

2. The District Court’s Role

a. The Statutory Considerations

The SRA tasked the district courts with sentencing individual offenders in

accordance with several statutory factors, but, at the same time, eliminated most of

the district court’s discretion in carrying out that task . In nearly all cases, the

court’s job was ministerial, to follow the Commission’s instructions. The scheme

played out this way.

The district courts were required to sentence pursuant to 18 U.S.C. § 3553.

Section 3553(a) directed the courts to tailor their sentences to the particular

circumstances of the offense and the offender consistent with what I refer to as the

parsimony21 principle: a sentence must be “sufficient, but not greater than

necessary” to achieve the four traditional purposes of sentencing. (emphasis

20 In so focusing, the Commission ignored a number of factors that Congress had suggested and the Commission had conceded were relevant to predicting recidivism. See U.S.S.G. Ch.4, Pt.A, intr. comment (recognizing that “empirical research has shown that other factors are correlated highly with the likelihood of recidivism, e.g., age and drug abuse, [but] for policy reasons they were not included here at this time”). Other factors disregarded included education, vocational skills, employment record, and family ties and responsibilities. See 28 U.S.C. § 994(d). 21 “Parsimony” is defined as “economy in the use of means to an end.” Merriam- Webster’s Collegiate Dictionary 846 (10th ed. 1999). In this context, parsimony translates to using the least harsh sentence (the means) needed to satisfy the traditional purposes of sentencing (the end). Although the court quibbles with the label “parsimony principle,” it does not disagree with the underlying concept.

158 added).22 Section 3353(b)(1), however, instructed that “the court shall impose a

sentence of the kind, and within the range” prescribed by the Guidelines, unless

“there exist[ed] an aggravating or mitigating circumstance of a kind, or to a

degree, not adequately taken into consideration by the Sentencing Commission in

formulating the guidelines” or there was no “applicable sentencing guideline.” 18

U.S.C. § 3553(b)(1). “In the absence of an applicable sentencing guideline, the

court [had to] impose an appropriate sentence, having due regard for the purposes

set forth in subsection (a)(2)”—the four traditional purposes of sentencing. Id.

The court also had to consider “sentences prescribed by guidelines applicable to

similar offenses and offenders” and “the applicable policy statements of the

Sentencing Commission.” Id.

Because the district court was obligated to follow the Guidelines in all but

the rarest cases, the district court only followed the parsimony principle to the

extent that the Commission did in creating the Guidelines. Congress instructed

the Commission to establish sentencing guidelines to meet the § 3553(a)(2)

purposes, but did not mention the parsimony principle that appears in § 3553(a).

22 In fashioning a sentence, the district courts were to take account of other factors, including: (1) the nature and circumstances of the offense and the history and characteristics of the offender, (2) the kinds of sentences available, (3) the Commission’s guidelines and policy statements, (4) the need to avoid unwarranted disparity, and (5) the need to provide restitution. 18 U.S.C. § 3553(a).

159 See 28 U.S.C. § 991(b)(1)(A).23 It is thus not clear that the Guidelines took into

account the parsimony principle, and the way they operated frequently created

tension with the parsimony principle.

In sum, while Congress instructed district judges to consider the §

3553(a)(2) purposes, district judges—to ensure uniformity—almost always had to

impose Guidelines sentences. They only conducted an independent analysis of the

3553(a)(2) purposes and parsimony principle in the rare event that aggravating or

mitigating circumstances existed or no guideline applied.

b. The Sentencing Proceeding

Under the SRA, district courts fashioned sentences using an adversary

process, in which “a confrontation between the parties [occurred] similar to that

which occurs at a civil bench trial.” United States v. Scroggins, 880 F.2d 1204,

1209 (11th Cir. 1989). The process began with a pretrial investigation conducted

by the court’s probation officer and the issuance of a presentence investigation

report (“PSI”). Id. at 1209 n.11. The PSI identified the guidelines applicable to

the offense of conviction, recited the facts related to the base offense level, the

23 Compare 18 U.S.C. § 3553(a) (“The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.”) with 28 U.S.C. § 991(b) (“The purposes of the United States Sentencing Commission are to (1) establish sentencing policies and practices for the Federal criminal justice system that (A) assure the meeting of the purposes of sentencing as set forth in section [18 U.S.C. §] 3553(a)(2).”).

160 specific offense characteristics and adjustments, determined the offense level, and,

after reciting the defendant’s criminal history, determined the defendant’s criminal

history category. The PSI then specified the sentencing range for the offense and

the kinds of sentences available. See 18 U.S.C. § 3552; Fed. R. Crim. P.

32(c)–(d); Scroggins, 880 F.2d at 1209 & n.11. After considering the parties’

objections to the PSI’s factual recitations and Guidelines determinations, the

probation officer summarized any unresolved objections in an addendum to the

PSI. Scroggins, 880 F.2d at 1209 & n.11. The PSI thus “serve[d] the purpose of a

pretrial stipulation in a civil case.” Id. The addendum framed the issues to be

litigated at the sentencing hearing.

The sentencing hearing followed. There, the district court resolved any

remaining factual and legal issues regarding the correct application of the

Guidelines. See Scroggins, 880 F.2d at 1209, 1211 & n.18. Determining the

circumstances of the offense and the offender’s criminal history presented factual

questions; the correct application of the Guidelines to those facts24 presented

24 Because the jury conviction or the guilty plea established the charged offense conduct (the base offense level) and the defendant’s criminal history would have been established (in most cases) as a matter of record, the district judge was responsible for making findings related to specific offense characteristics and adjustments. The government bore the burden of proving by a preponderance of the evidence any specific offense characteristics and adjustments (not established via jury verdict or guilty plea) that would enhance the defendant’s offense level, and any facts that would support an increase of the defendant’s category of offender. The defendant bore the same burden regarding adjustments that would reduce the offense level or the category of offender. United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989).

161 mixed questions. After hearing from the parties, the district court announced and

“state[d] in open court the reasons for its imposition of the particular sentence.”

18 U.S.C. § 3553(c). If the court imposed a within-Guidelines sentence and the

Guidelines range exceeded 24 months, the court had to also state “the reasons for

imposing a sentence at a particular point within the range.” Id. § 3553(c)(1). In

the rare event that the court imposed a sentence “not of the kind, or . . . outside the

[Guidelines] range,” it had to state its reasons for doing so with specificity in a

written order. Id. § 3553(c)(2).

Following its imposition of the sentence, the district court had to give the

parties a chance to object to its findings of fact, its Guidelines applications or

other legal rulings, or the manner in which the sentence was imposed. United

States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990), overruled on other grounds

by United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993) (en banc).

Entertaining an objection at this stage of the proceeding gave the district court an

opportunity to address the objection and correct any error it may have made.25

25 Allowing an objection to be made for the first time on appeal would give the objecting party an opportunity to blind side the district court’s sentencing decision. The Jones objection rule precluded this and enabled the court of appeals to treat objections that could have been made but were not as waived. The Jones “raise it or waive it” rule applied unless a party could demonstrate plain error, Jones, 899 F.2d at 1103, or the record disclosed that the district court was clearly aware of the objection in time to address it. See United States v. Weir, 51 F.3d 1031, 1033 (11th Cir. 1995) (declining to apply the waiver rule when the district court “clearly understood the [party’s] position and specifically rejected it”).

162  3. The Court of Appeal’s Role

Lastly, Congress tasked the courts of appeals with policing the system by

creating substantive grounds for appeal. In addition to the right to appeal an

“illegal” sentence, which had existed under the medical model, Congress created

three new grounds for appeal, see 18 U.S.C. § 3742, to assure that the district

court correctly applied the Guidelines. The first of these grounds was that the

sentence was the result of an “incorrect application” of the Guidelines. Id. §

3742(a)(2), (b)(2).26 The second was that the sentence was “greater” or “less”

than the Guidelines sentencing range. Id. § 3742(a)(3), (b)(3).27 The third was

that the sentence was imposed for an offense for which no guideline existed and

was “plainly unreasonable.” Id. § 3742(a)(4), (b)(4).28

***

In sum, the SRA structurally divided responsibility for sentencing among

26 A district judge’s determination of where to sentence a defendant within a correctly calculated Guidelines range, however, could not be appealed. United States v. Medina, 90 F.3d 459, 465 n.8 (11th Cir. 1996) (“The district court has the discretion to impose any sentence within the guideline range.”). 27 If the district court rejected a party’s request for a sentence greater or less than the Guidelines sentencing range, the sentence was unreviewable unless the court erroneously believed it lacked the authority to depart from the sentencing range. See, e.g., United States v. Rudisill, 187 F.3d 1260, 1265 (11th Cir. 1999); United States v. Fossett, 881 F.2d 976, 979–80 (11th Cir. 1989). 28 When no guideline existed, the findings of fact underpinning the sentence were reviewed for clear error. See 18 U.S.C. § 3742(e). Guidelines applications were reviewed de novo. See, e.g., United States v. Auguste, 392 F.3d 1266, 1267 (11th Cir. 2004).

163 three entities: the Commission, the district courts, and the courts of appeals. The

Commission promulgated the mandatory Guidelines, which were the lynchpin of

the SRA. The Guidelines created sentences by considering offense and offender

characteristics. In addition to a base offense level reflecting the charged offense

conduct, the offense characteristics incorporated specific offense characteristics

and more general adjustments, meaning that offenders were sentenced partly on

the basis of uncharged conduct. The offender characteristic was based entirely on

the offender’s criminal history.

The district courts were statutorily charged with sentencing offenders

consistent with the traditional purposes of sentencing and the parsimony principle.

In nearly all cases, though, the district courts were required to impose a

Guidelines sentence. Therefore, the district court rarely had to conduct an

independent analysis of the four purposes driving sentencing—the Sentencing

Commission had already done this work for them in devising the mandatory

Guidelines. Likewise, the courts rarely had to grapple with the parsimony

principle. In all, the district courts exercised very little discretion other than

determining where within the applicable Guidelines range to sentence the

offender. The courts of appeals’ role was to ensure that the Guidelines were

followed.

164  II. The Post-SRA Model

A. United States v. Booker

In United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a fractured

Supreme Court radically reformed and rearranged the roles the SRA had assigned

the district courts, the Commission, and the courts of appeals. At issue in Booker

was whether the SRA’s mandatory Guidelines violated the Sixth Amendment.

The Supreme Court held they did and reaffirmed that “[a]ny fact (other than a

prior conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or a jury verdict

must be admitted by the defendant or proved to a jury beyond a reasonable

doubt.”29 Id. at 244, 125 S. Ct. at 756. Because the Guidelines sentencing range

29 The court defined the statutory maximum as the “‘maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’” United States v. Booker, 543 U.S. 220, 232, 125 S. Ct. 738, 749 (2005) (quoting Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004)). “In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts [beyond those found by the jury], but the maximum he may impose without any additional findings.” Blakely, 542 U.S. at 303–04, 124 S. Ct. at 2537. Although the Guidelines range fell between the statutory minimum and maximum, the requirement that the judge in most cases impose a Guidelines sentence posed a constitutional problem. Prior to the SRA, the jury found beyond a reasonable doubt that the offender had committed the charged offense conduct. This finding exposed the offender to any sentence within the full statutory range. Because the jury found the charged offense conduct beyond a reasonable doubt, this sentencing model posed no constitutional problem. Under the SRA, the jury still made findings beyond a reasonable doubt as to the charged offense conduct. If the sentencing record contained only the jury’s findings regarding the charged offense conduct, the maximum sentence the offender could receive under the statute would be the sentence called for by the base offense level plus only those specific offense characteristics and adjustments supported by the jury’s findings (plus any increase based on the offender’s criminal history). But the SRA allowed the judge to make additional factual

165 was often determined by facts established by the district court by a mere

preponderance of the evidence, the mandatory Guidelines violated the Sixth

Amendment. Id. at 232–34, 244, 125 S. Ct. at 749–50, 756.

To solve this Sixth Amendment problem, the Court discussed two possible

remedies: (1) transform the Guidelines from mandatory to advisory,30 or (2)

require that every fact that would determine the Guidelines range be admitted by

the defendant or proved to a jury beyond a reasonable doubt. Citing

administrative concerns, the Booker remedial majority31 opted for the first choice.

Accordingly, the Supreme Court severed and excised two provisions of the

SRA. First, the Court struck 18 U.S.C. § 3553(b)(1), which had mandated the

findings—to support specific offense characteristics and adjustments beyond those supported by the jury’s findings—that would increase the offender’s sentence beyond the maximum sentence he could receive based solely on the jury’s findings. Thus, the SRA violated the Sixth Amendment because the judge’s factual findings would permit a sentence beyond the maximum sentence that would be allowed by statute based on the facts found by the jury. 30 The Supreme Court recognized that there would be no Sixth Amendment problem if the Guidelines “could be read as merely advisory provisions.” Booker, 543 U.S. at 233, 125 S. Ct. at 750. The SRA allowed for departure from the Guidelines in rare circumstances, but that did not render the Guidelines advisory. Id. at 234, 125 S. Ct. at 750. The clear import of this reasoning is that the Booker problem could be cured (and ultimately was cured) by transforming the Guidelines into recommendations, but the Guidelines had to be genuinely advisory. See Gall v. United States, 552 U.S. 38, 47, 128 S. Ct. 586, 595 (2007) (“We reject, however, an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.”). 31 Two different opinions in Booker garnered a five-vote majority. The first opinion, often called the “Constitutional opinion,” held that portions of the SRA violated the Sixth Amendment. The second opinion, called the “remedial opinion,” remedied the Constitutional problem by excising parts of the SRA.

166 imposition of a Guidelines sentence. 543 U.S. at 259, 125 S. Ct. at 764. Second,

the Court struck 18 U.S.C. § 3742(e), which set out standards of appellate review,

because it contained “critical cross-references” to § 3553(b). Id. at 260–61, 125 S.

Ct. at 765. To fill the gap, the Court held that the statute “impli[ed]” that

sentences should be “review[ed] for ‘unreasonable[ness]’” Id. (citing 18 U.S.C. §

3742(e)(3)) (final alteration in original).32 The Court later clarified that “review

for unreasonableness” meant review for abuse of discretion. Gall, 552 U.S. at 46,

128 S. Ct. at 594. Aside from these changes, the Court left the remainder of the

SRA intact, concluding that it functioned independently. Booker, 543 U.S. at 259,

125 S. Ct. at 764.

Booker redistributed the roles in sentencing offenders between the

Commission, the district courts, and the courts of appeals. The Commission no

longer framed the district courts’ sentencing discretion with mandatory guidelines;

instead, it would inform the district courts’ sentencing discretion with advisory

32 The Court explained:

[A]s we have previously held, a statute that does not explicitly set forth a standard of review may nonetheless do so implicitly. . . . [I]n this instance . . . the past two decades of appellate practice in cases involving departures[] imply a practical standard of review already familiar to appellate courts: review for “unreasonable[ness].”

Booker, 543 U.S. at 260–61, 125 S. Ct. at 765 (citing 18 U.S.C. § 3742(e)(3)) (final alteration in original).

167 guidelines.33 The district courts once again bore the responsibility of

independently crafting sentences. See United States v. Rodriguez, 406 F.3d 1261,

1287–89 (11th Cir. 2005) (Tjoflat, J., dissenting from the denial of rehearing en

banc). Thus, § 3553(a), which embodies the parsimony principle and the four

traditional purposes of sentencing, moved to the forefront, providing the bases for

the construction of a sentence. The courts of appeals bore the responsibility of

reviewing the district courts’ sentences, but under the abuse of discretion standard

of review. Such review, it was thought, would preserve some of the uniformity in

sentencing the SRA sought to achieve.

Because the primary responsibility for sentencing post-Booker lies with the

district courts, I explain what fashioning a sentence in accordance with § 3553(a)

involves, how the sentencing hearing should be conducted, and the explanation

the district courts must give for the sentences they impose. Only then can the

abuse of discretion standard of appellate review be meaningfully discussed.

B. The Key Inquiry—§ 3553(a)

33 Except for Booker’s requirement that the district courts consider the Guidelines in exercising their sentencing discretion, post-Booker sentencing resembles the sentencing the district court performed pre-Booker in imposing a sentence for an offense for which no guideline existed. When no guideline existed, the court had to “hav[e] due regard” for “the purposes set forth in [§ 3553](a)(2)[,] . . . sentences prescribed by guidelines applicable to similar offenses and offenders, and [] the applicable policy statements of the Sentencing Commission.” 18 U.S.C. § 3553(b)(1). In that situation, the district court was in effect doing the Commission’s work; because the court was not constrained by an offense category, it had to make an individualized sentencing determination.

168  Section 3553(a) sets out seven factors that a district court must “consider”

before imposing a sentence.34 At the end of the day, however, the statute requires

34 18 U.S.C. § 3553(a) provides:

(a) Factors to be considered in imposing a sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider— (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for— (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines— (i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and (ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or (B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); (5) any pertinent policy statement— (A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress

169 the district court to “impose a sentence sufficient, but not greater than necessary,

to comply with the purposes set forth in paragraph (2).” 18 U.S.C. § 3553(a).

Thus, although all of the sentencing factors identified in § 3553(a) must be

considered, the heart of the inquiry is the district court’s assessment of the four

traditional purposes of sentencing § 3553(a)(2) has codified.

The first purpose, § 3553(a)(2)(A), requires the sentence be “sufficient, but

not greater than necessary” to satisfy the need for punishment. Section

3553(a)(2)(A) actually involves three inquiries that exist in a dynamic

relationship: the sentence must “reflect the seriousness of the offense, []promote

respect for the law, and [] provide just punishment for the offense.”35 Section

(regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and (B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced. (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 35 Seriousness of the offense is easily understood. Promoting respect for the rule of law turns on perception of the punishment; respect for the rule of the law may be compromised if the offender or community believes that an offender’s punishment was too harsh or lenient based on the facts of the case or if it leads to unwarranted sentencing disparity. Just punishment takes into account the offender’s culpability. Evidence will be relevant to the (a)(2)(A) inquiry to the extent that it is relevant to any of these inquiries. Importantly, the first and third inquiries are specific to “the offense.” Moreover, the “offense” is the offense of conviction; therefore on these inquiries, the district court cannot consider conduct that does not bear on the offense of conviction, such as uncharged or unproven conduct. Sometimes, all three factors militate in favor of a strong need for punishment: for example, severe punishment may be just for a serious offense, and any failure to impose such

170 3553(a)(2)(B) focuses on the need for general deterrence—“the need for the

sentence imposed . . . to afford adequate deterrence to criminal conduct.” The

need for general deterrence involves an assessment of the seriousness of the

offense and its relative incidence in the community. Section 3553(a)(2)(C) asks

what sentence is needed to “protect the public from further crimes of the

defendant.” The basic task is to predict the likelihood that the offender will

commit further offenses, assess the potential seriousness of those offenses, and

determine the need to incapacitate the offender as a prophylactic measure.

Finally, § 3553(a)(2)(D) focuses on the need for the sentence to rehabilitate the

offender—“to provide . . . needed educational or vocational training, medical care,

or other correctional treatment in the most effective manner.” Ordinarily,

rehabilitation will play no role in determining the sentence. See 18 U.S.C. §

3582(a).36

punishment could engender disrespect for the rule of law. Sometimes, the factors will be in tension: although a serious offense was committed, circumstances (such as the offender’s motivation) may call for less punishment, and imposing a sentence without taking account of those circumstances may engender disrespect for the rule of law. 36 “[I]mprisonment is not an appropriate means of promoting correction and rehabilitation.” 18 U.S.C. § 3582(a); see also United States v. Shortt, 485 F.3d 243, 249 (4th Cir. 2007) (“Although still relevant, the fourth purpose, rehabilitation, was recognized by Congress and the Sentencing Commission to be insufficient, standing on its own, to justify a particular sentence.”). Rehabilitation is clearly relevant, however, when sentencing an offender to a term of probation or supervised release. See, e.g., S. Rep. No. 98-225, at 76 (“Rehabilitation is a particularly important consideration in formulating conditions for persons placed on probation.”). All of the (a)(2) factors are relevant to determining the conditions of probation or supervised release—probation and supervised release can certainly have punitive and deterrent

171  At first blush, it seems odd that Congress required consideration of seven

factors but ultimately directed the district courts to impose sentences sufficient but

not greater than necessary to comply with just one: § 3553(a)(2). On further

examination, however, it is apparent that all of the other factors inform the

analysis of the four purposes of sentencing. Section 3553(a)(1) requires

consideration of “the nature and circumstances of the offense and the history and

characteristics of the defendant.” These considerations are directly relevant to all

four purposes. Section 3553(a)(3) requires consideration of the “kinds of

sentences available,” which is crucial to any determination of what sentence

would be no harsher than necessary to punish or deter. Sections 3553(a)(4), (5)

and (6) require consideration of the Guidelines sentencing range, the

Commission’s policy statements, and the need to avoid unwarranted disparity,

respectively. Unwarranted sentencing disparity breeds disrespect for the rule of

law in contravention of § 3553(a)(2)(A) (whose purpose is, in part, to “promote

respect for the law”), and a correctly calculated Guidelines sentencing range

(which is calculated in part by considering the Commission’s policy statements) is

one tool for avoiding such disparity. Finally, § 3553(a)(7)’s command that the

court consider the need to provide restitution to victims is directly relevant to just

aspects, for example. For simplicity, though, I limit my discussion in this opinion to the imprisonment component of sentences.

172 punishment.

My take on what transpires after the district court considers the seven §

3553(a) factors is that the district court should impose a sentence that satisfies the

four traditional sentencing purposes of § 3553(a)(2). In most, if not all cases, one

of the purposes will drive the sentence. If, for example, the punishment that

should be meted out is more than sufficient to meet the needs of general and

specific deterrence, then the need for punishment will “drive” the sentence. If the

need for general deterrence is at the forefront (say in a tax evasion case) and the

defendant is a first-time offender, the sentence will be imposed to satisfy the need

for general deterrence—that is, the term of imprisonment for that purpose is

greater than the period of incarceration required for punishment or specific

deterrence. Alternatively, consider the case of a repeat offender with a string of

convictions that harmed scores of victims. The period of incarceration required to

protect the public from his future criminal behavior may exceed the term of

imprisonment needed for punishment and general deterrence, and specific

deterrence will drive the sentence.37

37 I say that a sentence is often driven by one of the (a)(2) purposes because of my reading of the plain statutory language of § 3553. Given the direction that a sentence must be sufficient but not greater than necessary to comply with the 3553(a)(2) purposes, it logically follows that a sentence should not be greater than is necessary to satisfy the (a)(2) purpose that demands the longest sentence. On the other hand, weighing the (a)(2) purposes against each other does not follow logically from the statute—even if there is no need for specific deterrence, for example, the sentence must still be sufficient to satisfy the driving (a)(2) purpose. If the

173  C. Preparing For the Sentencing Hearing

As I explain in part I.B, supra, a district judge might not find the answer to

what would constitute a parsimonious sentence by consulting the Guidelines

because the Commission was not instructed to take the parsimony principle into

account when fashioning the Guidelines. When the parties disagree about what

would be a parsimonious sentence, the PSI is of limited use to the district court.

As the Supreme Court anticipated in Gall, the PSI does not answer the question of

which of the four § 3553(a)(2) purposes the Guidelines sentencing range primarily

accommodates; nor does it recommend a sentence that would be sufficient, but not

greater than necessary to achieve those purposes.38 552 U.S. at 49–50, 128 S. Ct.

at 596. The PSI simply informs the district court of the range of sentences that, in

the Commission’s view, should be considered in cases with offense and offender

characteristics similar to the case before the court.

The district court needs the parties’ input to fashion a parsimonious

driving purpose is punishment, a district court cannot play the lack of a need for specific deterrence off of punishment—otherwise, the sentence would not be sufficiently long to satisfy the need for punishment. In handing down the sentence, the district judge must explain why the driving purpose subsumes the other purposes—that is, the sentence necessary to satisfy the driving purpose is also sufficient to satisfy all of the other (a)(2) purposes. All of the (a)(2) purposes, therefore, are properly considered, and the court’s characterization of the “driving purpose” as “speed[ing] ahead and flatten[ing] the other three” is inaccurate. Ante at 76 n.24. This explanation also enhances meaningful appellate review and the public perception that justice has been done. 38 The current PSI format is the same one used by the district courts’ probation offices pre-Booker.

174 sentence. The sentencing hearing is an adversary proceeding 39 in which the

parties frame the controversy by requesting sentences that they believe will meet §

3553(a)’s parsimony requirement.40 After the court has entertained the parties’

evidence and arguments in support of their requests, the district court determines

whether either sentence request is supported by the § 3553(a) factors. Id.

The obligations Gall has placed on the prosecutor and defense counsel to

present sentence requests to the district court is consistent with their adversarial

roles in the case.41 The prosecutor must urge the court to impose a sentence that is

39 Rita v. United States, 551 U.S. 338, 351, 127 S. Ct. 2456, 2465 (2007) (“[T]he sentencing court subjects the defendant’s sentence to the thorough adversarial testing contemplated by federal sentencing procedure.”). 40 This assumes that the prosecutor and defense counsel are properly representing their respective clients, as indicated in the following text. Although they may at times agree, the prosecutor will generally argue for a harsher sentence, and defense counsel for a more lenient sentence. If the prosecutor and defense counsel are not prepared to advance their positions, the district court ought to continue the sentencing hearing and reconvene it when the parties are prepared. 41 They assumed these obligations early in the case. The prosecutor’s obligations are expressed in the Principles of Federal Prosecution (“Principles”), United States Attorneys’ Manual, § 9-27.000 (1997), available at http://www.justice.gov/usao/eousa/foia_reading_room/usam/index.html, the defense counsel’s in the Sixth Amendment. The Principles were originally promulgated by the Attorney General on July 28, 1980 and were updated to describe the prosecutor’s role in the sentencing process under the Guidelines. The Principles have not been updated to reflect the changes Booker and Gall have made to the prosecutor’s obligations. As the Principles indicate, the prosecutor considers sentencing when presenting the case to the grand jury for indictment. Presumably acting on the prosecutor’s recommendation, the grand jury indicts the defendant for the “the most serious offense that is consistent with the nature of the defendant’s conduct, and that is likely to result in a sustainable conviction.” Id. § 9-27.300 (“Selecting Charges—Charging Most Serious Offenses”). The “‘most serious’ offense” is “that which yields the highest range under the sentencing guidelines.” Id.

175 “appropriate . . . under all the circumstances of the case.” U.S. Dep’t of Justice,

United States Attorneys’ Manual, § 9-27.320 (1997), available at

http://www.justice.gov/usao/eousa/foia_reading_room/usam/index.html. To this

end, the prosecutor must endeavor to “ensure that the relevant facts are brought to

the court’s attention fully and accurately.” Id. § 9-27.710 (“Participation in

Sentencing—Generally”). This includes “mak[ing] a factual presentation to the

court when . . . [i]t is necessary to supplement or correct the [PSI]; [i]t is

necessary in light of the defense presentation to the court; or [i]t is requested by

the court.” Id. § 9-27.720 (“Establishing Factual Basis for Sentence”). Finally,

the prosecutor must “[b]e prepared to substantiate significant factual allegations

disputed by the defense.” Id. Defense counsel also has an obligation to prepare

for the sentencing hearing; in fact, the Sixth Amendment requires that defense

counsel provide the defendant with effective assistance in all phases of the case.

If the offense initially presented to the grand jury does not fully embrace the nature and extent of the criminal conduct involved, the prosecutor should recommend that the grand jury’s indictment include charges that would do so. The prosecutor should seek additional charges when they

1. Are necessary to ensure that the . . . indictment: a. Adequately reflects the nature and extent of the criminal conduct involved; and b. Provides the basis for an appropriate sentence under all the circumstances of the case; or 2. Will significantly enhance the strength of the government’s case against the defendant or a codefendant.

Id. § 9-27.320 (“Additional Charges”).

176 This would include providing the district court with evidence favorable to the

defendant as the court considers § 3553(a)(2)’s sentencing objectives.

The parties should present their sentence requests to the district court after

the PSI, and any addendums to the PSI, are in final form and ready for submission

to the court. Ideally, the requests should be presented well in advance of the

sentencing hearing in sentencing memoranda akin to the pretrial briefs parties

routinely present to the district court in advance of a civil bench trial. In their

sentencing memoranda, the parties should consider presenting the district court

with findings of fact and conclusions of law similar to the findings of fact and

conclusions of law parties in a civil case present the court prior to or following a

bench trial. The memoranda would indicate the Guidelines sentencing range,42 the

sentence the party requests, the primary § 3553(a)(2) purpose the sentence is to

serve, and why the sentence would be sufficient, but not greater than necessary to

comply with the § 3553(a)(2) purposes.43

42 This is the sentencing range set out in the PSI or, if the party objects to the PSI Guidelines calculation, the Guidelines calculation and sentencing range the party will ask the district court to reach at the sentencing hearing. 43 The Northern District of California Federal Public Defender provides a sample sentencing memorandum that explains that it is important to include this information because post-Booker, the court may no longer uncritically apply the Guidelines—it is counsel’s responsibility to explain how all of the § 3553(a) factors are implicated in a given case, with an emphasis on (a)(2). N. Dist. Cal. Fed. Pub. Defender, Model Sentencing Memorandum, http://www.ndcalfpd.org/Briefbank/Booker/David%20McColgin%20Model%20Sentencing%20 Memo%204.25.05.htm (last visited June 30, 2010).

177  In formulating their sentence requests, the parties should first evaluate how

well the guidelines listed in the PSI serve as proxies for § 3553(a)(2)’s purposes.

As explained, the Guidelines offense level for the offense of conviction is made

up of the base offense level, specific offense characteristics, and adjustments.

Some of the specific offense characteristics and adjustments may describe acts

committed by the defendant in perpetrating the offense of conviction; the

Commission treats such acts as part of the “real” offense conduct and properly

includes them in the offense level as proxies for the § 3553(a)(2)(A)–(B) needs for

punishment and general deterrence. Other specific offense characteristics and

adjustments, however, may not fairly be said to have any bearing on the

defendant’s commission of the offense of conviction and thus on the (A) and (B)

needs. Therefore, although the Commission treats them as proxies for (A) and (B)

purposes, they may be irrelevant to whether the sentence a party proposes is

sufficient, but not greater than necessary to satisfy the (A) and (B) needs in the

case.44 Accordingly, in determining the proxies for (A) and (B), the defendant

44 For example, there is a 2-point upward adjustment for lying to the probation officer who is compiling the PSI, U.S.S.G. §3C1.1 & cmt. n.4(h), but that conduct usually has nothing to do with the charged offense. The Guidelines manual is littered with adjustments and specific offense characteristics that may or may not be relevant to § 3553(a)(2) in a given case, even if the offender performed the conduct in question. U.S.S.G. § 3B1.5, for example, adjusts the offense level upward if the offender used body armor during a drug offense, but the use of body armor during a simple drug transaction in which the offender does not anticipate any violence might have no bearing on the § 3553(a)(2) purposes. Other examples of potentially irrelevant adjustments include: U.S.S.G. § 3A1.1 (hate crime motivation); § 3A1.2 (whether the victim was

178 may urge the court to remove from the PSI’s offense level the specific offense

characteristics and adjustments that reflect conduct unrelated to the offense of

conviction.45

The offense level may not fit the circumstances of the case even after

irrelevant considerations are removed. As indicated, the Guidelines offense level

applies to all cases involving the offense of conviction; that is, it does not speak to

the unique circumstances of a particular case. Consequently, in its sentencing

memorandum, a party may urge the court to deviate from the prescribed offense

level to take into account one or more of the offense characteristics listed in 28

U.S.C. § 994(c) (which the Commission considered in determining the categories

of offenses)46 that render the instant case atypical. In doing so, the party would be

a government official); § 3A1.3 (whether the victim was restrained during the offense); § 3B1.3 (whether the offender abused a position of trust or used a special skill); § 3B1.4 (whether the offender used a minor to commit the crime); § 3C1.2 (whether the offender recklessly endangered people during flight); § 3C1.3 (whether the offender was on release when the crime was committed). 45 The government will oppose the defendant’s request if it believes that the specific offense characteristics and adjustment do bear on the offense of conviction. 46 In 28 U.S.C. § 994(c), Congress specified the following offense factors:

(1) the grade of the offense; (2) the circumstances under which the offense was committed which mitigate or aggravate the seriousness of the offense; (3) the nature and degree of the harm caused by the offense, including whether it involved property, irreplaceable property, a person, a number of persons, or a breach of public trust; (4) the community view of the gravity of the offense; (5) the public concern generated by the offense;

179 positing a substitute offense level and using it to support the sentence it will be

asking the court to impose.

The parties’ sentencing memoranda will also address the prescribed

criminal history category, which, coupled with the offense level, would inform the

district court’s sentencing discretion. If the criminal history category is I, and the

government does not contend that the category should be increased on the ground

that it “substantially under-represents the seriousness of the defendant’s criminal

history or the likelihood that the defendant will commit other crimes,” U.S.S.G.§

4A1.3(a)(1), the defendant’s sentence will be driven solely by the offense level for

the offense of conviction—that is, the sentence necessary to satisfy the need for

punishment or general deterrence will be more than enough to satisfy any need for

specific deterrence.

If the defendant’s criminal history category is greater than I, the parties may

dispute whether the defendant’s punishment for the offense of conviction should

be greater on account of his past criminal behavior, see § 3553(a)(2)(A), or, if not,

whether such behavior predicts future criminality and thus warrants an additional

period of incarceration to protect the public, see § 3553(a)(2)(C). Regarding the

(6) the deterrent effect a particular sentence may have on the commission of the offense by others; and (7) the current incidence of the offense in the community and in the Nation as a whole.

180 latter, the parties may point to factors that bear on the defendant’s likelihood to

recidivate but that the Commission did not take into account for policy reasons,

such as age and drug abuse.47 In the end, each party will arrive at a criminal

history category, which, coupled with the offense level it proposes, will

presumably support the sentence it is requesting the district court to impose.

D. The District Court Proceeding

The sentencing hearing is framed by the competing positions of the parties,

as expressed in their sentencing memoranda. The government seeks the most

severe sentence the facts and circumstances of the case will allow. The defendant

seeks leniency. The manner in which the district court conducts the sentencing

hearing is relevant to the parties’ and the public’s perception of whether the

47 Although the Commission settled on criminal history as the only measure of offender characteristics in the Guidelines, Congress listed in 28 U.S.C. § 994(d) a number of other offender characteristics the Commission could consider in devising the Guidelines:

(1) age; (2) education; (3) vocational skills; (4) mental and emotional condition to the extent that such condition mitigates the defendant’s culpability or to the extent that such condition is otherwise plainly relevant; (5) physical condition, including drug dependence; (6) previous employment record; (7) family ties and responsibilities; (8) community ties; (9) role in the offense; (10) criminal history; and (11) degree of dependence upon criminal activity for a livelihood.

181 sentence imposed is fair or not. Gall, 552 U.S. at 50, 128 S. Ct. at 597. To ensure

that it is fair, and thus perceived as such, the sentence must be subjected to the

“thorough adversarial testing contemplated by the federal sentencing procedure,”

Rita v. United States, 551 U.S. 338, 352, 127 S. Ct. 2456, 2468 (2007), and the

reasons for its imposition must be explained, id. at 356, 127 S. Ct. at 2468

(“Confidence in a judge’s use of reason underlies the public’s trust in the judicial

institution. A public statement of [the judges’s] reasons [for the particular

sentence imposed] helps provide the public with the assurance that creates that

trust.”). Moreover, the judge’s statement of reasons “allow[s] for meaningful

appellate review.” Gall, 552 U.S. at 39, 128 S. Ct. at 590.

The adversarial process the Supreme Court mandates involves five steps.

After listing them in order, I address them in some detail to indicate what might

take place in a typical case in which the parties cannot agree that the Guidelines

sentencing range correctly approximates the § 3553(a)(2) purposes. First, the

district court determines the Guidelines sentencing range. Id. at 49, 128 S. Ct. at

597; 18 U.S.C. § 3553(a); Fed. R. Crim. P. 32.48 Second, turning to the prosecutor

then to defense counsel, the court asks the parties for their sentence requests and

affords them an opportunity to present evidence relevant to each of the four §

48 “As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point.” Gall, 552 U.S. at 49, 128 S. Ct. at 596.

182 3553(a)(2) purposes. Gall, 552 U.S. at 49–50, 128 S. Ct. at 596–97.49 Third, the

court entertains the parties’ arguments in support of their sentence requests. Id.

Fourth, the court determines whether the sentence either party proposes satisfies

each of § 3553(a)(2)’s purposes and the parsimony principle. Id. Fifth, the court

fashions a sentence that is sufficient, but not greater than necessary to meet those

purposes, explains how the sentence does this, and if the sentence deviates from

the Guidelines range or the parties’ requests, gives the reasons for the deviation.

Id.

The first step of the sentencing hearing is to determine whether the

Guidelines sentencing range fixed by the PSI is correctly calculated.50 By

“correctly calculated,” I mean calculated per the instructions in the Guidelines

manual. At this stage, the court will resolve any disputes regarding whether the

manual’s instructions were properly followed.

In the second step, the district court will entertain the parties’ sentencing

requests. The government and then the defense will present evidence to support

their requested sentences, and this evidence will often show why the Guidelines

49 The record would already contain the evidence adduced at trial or the facts the defendant admitted in pleading guilty. But the parties may wish to present additional evidence relating to, for example, the circumstances of the offense listed in 28 U.S.C. § 994(c), or relating to the offender characteristics in § 994(d) (and specifically his potential for recidivism). 50 In doing this, the court will have to resolve any Guideline issues the addendum to the PSI may disclose.

183 recommendation is or is not appropriate in the given case.51 A party might

challenge the offense level the court has set by contending that the Commission’s

generalized treatment of the offense—for example, the weights accorded to

characteristics in the base offense level or specific offense characteristics—is

inappropriate in the present case.52 Aside from relying on the circumstances that

“mitigate or aggravate the seriousness of the offense,” the party might proffer

evidence concerning the “community view of the gravity of the offense,” or “the

current incidence of the offense in the community.” This evidence, the party

would contend, is relevant to the § 3553(a)(2)(A)–(B) inquiry regarding the needs

for punishment and general deterrence. Or, a party might challenge the criminal

history category the court has set by proffering evidence on characteristics such as

gender, race and ethnicity, employment status, educational attainment, and marital

status that the Commission did not consider in establishing the categories of

51 Because the Guidelines “reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives,” a party may argue that “the Guidelines sentence should not apply.” Rita, 551 U.S. at 350–51, 127 S. Ct. at 2465 (emphasis added). Perhaps the PSI’s Guidelines calculation “fails properly to reflect § 3553(a) considerations, or perhaps . . . the case warrants a different sentence regardless.” Id. at 351, 127 S. Ct. at 2465 (citing Fed. R. Crim. Pro. 32(f)). 52 When the Guidelines were mandatory, “a party seeking a departure generally accepted his base offense level as a starting point and then attempted to show that the case was atypical.” United States v. Rodriguez, 406 F.3d 1261, 1287 (11th Cir. 2005) (Tjoflat, J., dissenting from the denial of rehearing en banc). “[U]nder the new model the defendant can also simply concede that his case is typical and challenge the wisdom of the Commission’s judgment regarding the appropriate punishment in heartland cases.” Id.

184 offenders.53

In the third step, the court entertains the parties’ arguments in support of

their sentence requests.

The court then turns to the fourth step of determining whether either party’s

proposal meets the four sentencing purposes of § 3553(a)(2) and is the sentence

“sufficient, but not greater than necessary to comply with” those purposes. Gall,

552 U.S. at 50, 128 S. Ct. at 597 (“[T]he district judge should . . . consider all of

the § 3553(a) factors to determine whether they support the sentence requested by

a party.”).

Finally, the court moves to the fifth step and fashions a sentence which,

depending on its fourth-step determination, may mirror a party’s request. If

neither side prevailed in the fourth step, the sentence the court imposes may be

less than the government requested or more than the defendant requested.54 The

53 A report issued by the Sentencing Commission found that these factors correlated with recidivism. U.S. Sentencing Comm’n, Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines 11–13 (2004). The SRA instructed the Commission to “assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders.” 28 U.S.C. § 994(d). A question I do not purport to answer is whether this provision limits the ability of the district court to consider these offender characteristics in determining a defendant’s potential for recidivism under § 3553(a)(2)(C). 54 I omit from this discussion the possibilities that the record supported a more punitive sentence than the one the government requested or a less punitive sentence than the one defense counsel requested.

185 court supports the sentence by making factfindings regarding the (a)(2) purposes55

and explaining how the sentence is parsimonious to the driving § 3553(a)(2)

purpose.56 In the process, the court must also explain the reasons for any

deviation from a party’s request or the PSI sentencing range as established in step

one.

After pronouncing a sentence, the court elicits the parties’ objections in

accordance with United States v. Jones, 899 F.2d 1097 (11th Cir. 1996). The

objections are important for appellate review. They also give the court an

opportunity to correct any errors it may have made, which if corrected to the

objecting party’s satisfaction will render an appeal unlikely.

55 These facts may come from the PSI, the trial transcript or guilty plea, or evidence presented by the parties at the sentencing hearing. To the extent that the court intends to take judicial notice of facts, it should notify the parties in advance. 56 Requiring that district court judges make factfindings on each of the (a)(2) purposes, identify the driving purpose, and explain how the sentence is parsimonious to the driving purpose is more than is currently required of district court judges. As the court’s opinion points out, I have authored opinions in which I stated that the district court need not discuss each of the (a)(2) purposes in detail. I did so in adherence to circuit precedent. As we are now sitting en banc, I would overturn that precedent, and, despite the court’s concern, see ante at 71, doing so would be entirely consistent with the Supreme Court’s statements in Rita. In Rita, the Supreme Court opined that “we cannot read [§ 3553(c)] (or our precedent) as insisting upon a full opinion in every case. The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances.” Rita, 551 U.S. at 356, 127 S. Ct. at 2468. I agree. Sometimes—perhaps when the parties disagree over only minor points or when both parties seek a sentence within the range recommended by the Guidelines—a relatively brief explanation by the district court will suffice to support its finding and to allow appellate review. Other times—perhaps if the parties seek vastly different sentences or fiercely contest the evidence—the district court will necessarily have to provide a more detailed explanation to respond to the parties’ arguments, to support its sentence, and to allow meaningful appellate review.

186  E. Appellate Review

1. Abuse of Discretion Explained

It is axiomatic that the appellate review of a sentence is conducted under the

abuse of discretion standard. Rita, 551 U.S. at 351, 127 S. Ct. at 2465

(“‘[R]easonableness’ review merely asks whether the trial court abused its

discretion.”); Gall, 552 U.S. at 46, 128 S. Ct. at 594 ( “Our explanation of

‘reasonableness’ review in the Booker opinion made it pellucidly clear that the

familiar abuse-of-discretion standard of review now applies to appellate review of

sentencing decisions.”). Under this “familiar” standard, Gall, 552 U.S. at 26, 128

S. Ct. at 594, a district court abuses its discretion when it follows improper

procedures, bases its decision on an incorrect interpretation of law or clearly

erroneous factfindings, or when the reviewing court is left with the definite and

firm conviction that the court committed a clear error of judgment in making the

ultimate decision entitled to deference. Klay v. Humana, Inc., 382 F.3d 1241,

1251 (11th Cir. 2004). When conducting this review, the court of appeals may

only consider evidence, arguments, and objections presented to the district court.

See United States v. Weir, 51 F.3d 1031, 1032 (11th Cir. 1995).

The abuse of discretion standard governs a broad array of appellate

inquiries; although the same basic framework applies to all these inquiries, how

187 that framework works in practice depends very much on the nature of the decision

being reviewed.57 See Am. Hosp. Supply Corp. v. Hosp. Products, Inc., 780 F.2d

589, 594 (7th Cir. 1985) (Posner, J.) (“[T]his phrase [abuse of discretion] covers a

family of review standards rather than a single standard, and a family whose

members differ greatly in the actual stringency of review.”). The Supreme Court

has said that “[w]hether discretion has been abused depends, of course, on the

bounds of that discretion and the principles that guide its exercise.” United States

v. Taylor, 487 U.S. 326, 336, 108 S. Ct. 2413, 2419 (1988). In other words,

examining what the district court inquiry looks like reveals how and to what the

court of appeals defers. As I explained in part II, the sentencing inquiry is

primarily a factual inquiry—the district court derives the ultimate sentence from a

series of factfindings based on circumstantial evidence, credibility determinations,

and sometimes conflicting evidence. In light of the nature of the district court’s

sentencing inquiry, I deconstruct the abuse of discretion standard and identify how

its component parts apply to the district court’s sentencing determination. Once

simplified this way, the appellate court’s task in reviewing sentences for abuse of

discretion becomes clear.

I begin with the statement that a district court can abuse its discretion by

57 The court in this case fails to grapple with the abuse of discretion standard in any meaningful way.

188 making a clearly erroneous factfinding. It is well established that a finding of fact

is clearly erroneous when “although there is evidence to support it, the reviewing

court is left with a definite and firm conviction that a mistake has been committed.

. . . Where there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S.

564, 573–74, 105 S. Ct. 1504, 1511 (1985) (quotation omitted). The sentencing

inquiry is driven in large part by factfindings: the underlying facts regarding the §

3553(a)(2) factors,58 the weight given to each piece of evidence, the district

court’s determinations regarding each § 3553(a)(2) purpose,59 and the sentence

necessary to satisfy each § 3353(a)(2) purpose are all factfindings. As such, the

appellate court accepts these findings unless they are clearly erroneous.

A district court can also abuse its discretion by misinterpreting the law,

although the fact-intensive nature of sentencing means that there will be fewer

instances in which the district court abuses its discretion in this way. Nonetheless,

the district court might misinterpret the law in two key ways.60 First, it would be a

58 For example, the defendant’s conduct in committing the offense, circumstances about the defendant’s background that bear on the offense, evidence about the defendant’s mental or psychological condition, or evidence about the defendant’s likelihood to recidivate. 59 For example, how serious the offense was or how great of a need there is for general deterrence. 60 I do not mean that there only two ways in which the district court can make a mistake of law, but I expect these two ways to be the most common.

189 misinterpretation of the law for the district court to fail to follow the adversarial

procedure required by Gall, which in part requires the court to elicit and consider

sentencing requests from the parties and to explain the reasons for its sentence in a

way that allows for the parties to object to any perceived errors and for the court

of appeals to meaningfully review the sentence. Second, the district court would

misinterpret the law if it follows the correct procedural steps but its explanation

reveals that it misunderstood the nature of the sentencing inquiry. This would

occur, for example, if the district court weighs the § 3553(a)(2) purposes against

each other instead of determining the sentence parsimonious to the driving

purpose or if the district court erroneously believes that it cannot consider relevant

evidence.61

61 As this explanation shows, abuse of discretion through a misinterpretation of the law generally refers to errors in procedure or in the way the district court conducts its inquiry. This is so because most of the district court’s determinations during the sentencing process are factual determinations—how important each (a)(2) factor is, for example. Because the other § 3553(a) factors roll into the (a)(2) inquiry, there are relatively few issues of law for the court of appeals to consider. For example, the need for a sentence to satisfy the § 3553(a)(2)(A) purpose is a factfinding based on three subsidiary factfindings—the need for the sentence “to reflect the seriousness of the offense, to promote respect for the rule of law, and to provide just punishment for the offense”—which in turn are based on underlying factfindings regarding the offense and the offender (facts such as the offender’s criminal history, his ties to the community, his conduct during the offense, and so on). All of these factfindings are reviewed for clear error, and a clearly erroneous factfinding at any point in the process could render the subsequent factfindings that are based on it clearly erroneous as well. Likewise, a factfinding regarding the need to satisfy an (a)(2) purpose could be clearly erroneous if the underlying circumstantial facts on which it is based do not support the finding. By contrast, if the district court considers these facts in an impermissible way—for example, by believing that the seriousness of the offense must always be given more weight than the need for just punishment or the need to respect the rule of law in determining the need for a

190  Lastly, the court of appeals will reverse the sentence if the district court

committed a clear error of judgment. This term must be applied carefully when

reviewing a sentence, which necessarily turns very heavily on the district court’s

assessment of the facts. It seems that when courts use the phrase “clear error of

judgment” in this context, they are frequently saying that the court improperly

weighed the § 3553(a) factors. See, e.g., United States v. Westry, 524 F.3d 1198,

1222 (11th Cir. 2008) (“A remand for resentencing due to the unreasonableness of

a sentence occurs only ‘if we are left with the definite and firm conviction that the

district court committed a clear error of judgment in weighing the § 3553(a)

factors by arriving at a sentence that lies outside the range of reasonable sentences

dictated by the facts of the case.’”). As I have explained, however, the § 3553(a)

factors fold into the (a)(2) purposes, and the (a)(2) purposes should not be

weighed against each other; rather, the court should identify the (a)(2) purpose

that drives the sentence and fashion a sentence parsimonious to that purpose.

Moreover, the need to satisfy each (a)(2) purpose and which purpose will drive the

sentence to satisfy (a)(2)(A)—the court will have misinterpreted the law. Similarly, the district court would commit a legal error if it considers patently irrelevant evidence. The difference is important: by proceeding this way, the court of appeals defers to the district court’s factfindings so long as the district court properly understood the inquiry it was performing. The court of appeals thereby ensures that it reviews the facts as found by the district court instead of substituting its own findings regarding the (a)(2) purposes. This makes sense given that Congress designated the district court as the forum for the “main event” in sentencing. See infra part IV.

191 sentence are both factfindings, the review of which I have already described.

Therefore, for “clear error of judgment” to do any work in appellate review

of a sentence, it must refer to the situation in which the court has imposed a

sentence that is more or less than necessary to satisfy the driving purpose. But

importantly, the appellate court is not to substitute its own judgment for that of the

district court; rather, it must determine whether the district court committed a clear

error of judgment by imposing a sentence that cannot be reconciled with its

correctly interpreted law and not-clearly-erroneous facts. In some regards, this

inquiry is akin to the inquiry an appellate court performs when determining

whether the evidence submitted to a jury is sufficient to support the jury’s verdict.

Cf. United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (noting that we

“will not overturn a conviction on the grounds of insufficient evidence unless no

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt”). In the sentencing context, though, the appellate court is

limited to the facts set forth in the district court’s sentencing explanation, which

shows what evidence the court deemed relevant and probative and how that

evidence informed the court’s decision.62 Thus, focusing on the district court’s

62 The court of appeals must limit its inquiry to the facts set out in the district court’s sentencing explanation for the abuse of discretion standard to have any force. Otherwise, the court would be free to search the entire record and make its own factual findings. This, of course, would be inconsistent with the notion that the court of appeals must defer to the district court’s proper exercise of discretion. If the district court wholly ignores relevant evidence or a

192 sentencing explanation, the appellate court asks whether—in light of the district

court’s factfindings, its explanation for the sentence, and any deviation from the

Guidelines sentencing range and the parties’ requests—any rational judge could

have concluded that the sentence was “sufficient but not greater than necessary” to

achieve the § 3553(a)(2) purposes. If the sentence imposed cannot be reconciled

with the § 3553(a)(2) factfindings, the sentence must be vacated.

Deconstructing the abuse of discretion standard shows that appellate review

of a sentence should be a clearly delineated, straightforward process. If the

district court followed the proper procedures, the court of appeals will have a

sentencing explanation that clearly explains the facts found by the district court,

how they relate to the (a)(2) purposes, the driving (a)(2) purpose, and how the

sentence is parsimonious to that purpose. From the record (which will include the

parties’ objections and the court’s responses), the court will be able to determine

whether any factfindings were clearly erroneous in light of the evidence presented.

It will also be readily evident whether the district court properly understood the

nature of the sentencing inquiry. From there, the court asks whether there are

sufficient facts in the record to support the sentence—that is, it must determine

party’s argument (and the party objects), the court will have erred by misinterpreting the law, which requires that it respond to evidence presented and arguments made by the parties. Fed. R. Crim. P. 32(i)(3)(B).

193 whether any reasonable judge could find, based on the facts clearly found in the

record, that the sentence imposed is parsimonious to the driving purpose.63 With

this framework in mind, I now explain how the court of appeals should review

63 Consistent with the Supreme Court’s explanation of sentencing review in Gall, many of our cases incorporate a boilerplate statement of the standard of review as consisting of two steps: procedural and substantive reasonableness. Our cases routinely include a statement like this:

“We review sentencing decisions only for abuse of discretion, and we use a two-step process.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). First, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007)). If we conclude that the sentence is procedurally sound, the second step is to review the “substantive reasonableness” of the sentence, taking into account the totality of the circumstances, “including the extent of any variance from the Guidelines range.” Gall, 552 U.S. at 51, 128 S. Ct. at 597.

United States v. Alfaro-Moncada, __ F.3d __, 2010 WL 2103442 (11th Cir. 2010). Nothing I say here is inconsistent with this language. My goal is simply to peel back the boilerplate language and explain how the abuse of discretion standard addresses the procedural and substantive unreasonableness concerns described in Gall and in our cases. When a district court hands down a procedurally unreasonable sentence, it has abused it discretion by either making a clearly erroneous factfinding or by misinterpreting the law. All of the errors labeled as procedural in Gall—“failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence,” 552 U.S. at 51, 128 S. Ct. at 597—are instances in which a district court has abused its discretion by making a clearly erroneous factfinding or by misinterpreting the law. If the sentence is procedurally reasonable (that is, no clearly erroneous factfindings and proper interpretation of the law), Gall instructs the courts of appeals to turn to the substantive reasonableness of the sentence. Id. Because the appellate court is not to substitute its own judgment for the district court’s, id., substantive review means ensuring that the record supports the district court’s determination that the sentence imposed is the one sufficient but not greater than necessary to satisfy the driving sentencing purpose, which is the clear error of judgment inquiry.

194 each step of the sentencing hearing I set out in the previous section.

2. Reviewing the Sentencing Hearing

Having carefully examined the abuse of discretion standard in the

sentencing context, I now show how appellate review under that standard

identifies abuses of discretion at each step of the sentencing hearing.64 I posit a

case in which a party contends that the district court failed to follow the five-step

process.65 The party also contends, alternatively, that, if the court followed that

process, its rulings in at least one of the steps were erroneous.66 The court of

appeals considers each challenge seriatim, under the abuse of discretion standard;

that is, it examines for clear error the facts on which the district court based its

ruling and the district court’s application of the law de novo. If the district court

abused its discretion at any step, the inquiry ends there. The sentence must be

64 As the Supreme Court has emphasized in Rita and Gall, the process the district court employs to reach its sentencing decision is vitally important to the perception that the sentence handed down is fair. If the process is tainted, it matters not whether the sentence might appear to be fair; the sentence is perceived as tainted as well. What Gall and our cases routinely refer to as “procedural” review encompasses what appears in my discussion as steps one through four and the district court’s explanation of the sentence at step five. What Gall and our cases refer to as “substantive” review involves only the final inquiry at step five—whether the record supports the district court’s decision. 65 It is well settled that a district court’s failure to follow the prescribed process constitutes an abuse of discretion. Klay, 382 F.3d at 1251. In the case I posit in the text, the appellant challenges the district court’s ruling in all five steps of the sentencing process. Because these steps reflect the process required by the law, failing to follow them demonstrates that the district court abused its discretion by misunderstanding the law. 66 I am assuming that these challenges were presented to the district court in the form of objections and were preserved for appeal in accordance with United States v. Jones.

195 vacated, and the case remanded for resentencing.67 If there is no abuse of

discretion in a step, the court proceeds to the next.

Step one required the district court to determine the Guidelines sentencing

range for the case. This determination is vulnerable to attack on two fronts: the

district court’s factual findings and its application of the Guidelines to the facts. If

the factfindings are clearly erroneous, the district court abused its discretion. If

the factfindings survive clear error review, the question becomes whether the

court erred in applying the Guidelines to the facts. If in doing so the court made

an “identifiable legal mistake” in interpreting the Guidelines or if it “clear[ly]

err[ed]” in applying them, the court abused its discretion and the sentence must be

vacated and the case remanded. See United States v. White, 335 F.3d 1314,

1317–19 (11th Cir. 2003).

At step two, the district court was required to give the government, and

then defendant, the opportunity to present their sentence requests and to provide a

factual basis in support of their proposals.68 If the court failed to afford the parties

the opportunity to present their case, it abused its discretion (by misinterpreting

67 The step-by-step appellate review I describe includes application of the harmless error doctrine. In most cases—especially the mine run cases where the dispute centers on where within the Guidelines sentencing range the sentence should have been imposed—the review will focus on fewer than the five steps the district court took in fashioning the sentence. 68 Because the government initiated the criminal proceeding, it has the burden of first going forward with its sentencing proposal.

196 the law requiring it to provide such an opportunity) and the defendant’s sentence

must be vacated.

At step three, the court must have given the parties the opportunity to

argue—in light of all of the evidence presented at step two—that the sentences

they have requested are supported by the § 3553(a) factors and are “sufficient but

not greater than necessary” to achieve § 3553(a)(2)’s purposes. If the court failed

to do this, it abused its discretion (by misinterpreting the law), and the sentence

must be vacated.

Step four asked the district court to determine whether either party’s

sentence proposal fulfilled § 3553(a)(2)’s sentencing purposes, was not

inconsistent with the remaining § 3553(a) factors, and satisfied the statute’s

parsimony requirement. If the court failed to engage in this process, it abused its

discretion (by misinterpreting the law) and the sentence must be vacated.

Step five required the district court to select and explain a sentence

supported by § 3553(a)’s factors and, moreover, a sentence “sufficient, but not

greater than necessary” to meet § 3553(a)(2)’s objectives. If the sentence deviated

from the Guidelines sentencing range for the case, the court had to set forth the

reasons for the deviation. The first question the court of appeals must answer is

whether the district court’s explanation for the sentence is sufficient to permit

197 meaningful appellate review. Rita, 551 U.S. at 357, 127 S. Ct. at 2469. If not, the

sentence should be vacated and the case remanded for further proceedings on the

ground that the district court misinterpreted the law requiring it to provide such an

explanation. The court of appeals also determines whether any facts relied on in

the sentencing explanation were clearly erroneous. If the explanation is sufficient

and the facts not clearly erroneous, the question becomes whether the record

reasonably supports the district court’s explanation and therefore the sentence. If

it does, the district court did not commit a clear error of judgment and did not

abuse its discretion.

In sum, appellate scrutiny of a sentence is performed through the classic

abuse of discretion lens. This is consistent with Gall’s command that a district

court’s sentence is reviewed for abuse of discretion whether inside or outside the

Guidelines sentencing range. Gall, 552 U.S. at 51, 128 S. Ct. at 597. It is also

consistent with the district court’s sentencing expertise. The district court is

unquestionably the best judicial actor to apply the fact-heavy and open-ended

inquiry demanded by § 3553(a) and to fashion a sentence in accordance with the

parsimony principle. See id. (“The sentencing judge is in a superior position to

find facts and judge their import under § 3553(a) in the individual case.”)

(quotation omitted).

198  III. Applying the Sentencing Model

Irey’s sentence must be vacated and the case remanded because the court

failed to explain its deviation from the Guidelines sentencing range and its denial

of the Government’s request and because it failed to make intelligible findings on

two of the four § 3553(a)(2) purposes.

A. Irey’s Sentence

The Government charged William Irey with one count of sexual

exploitation of children under 18 U.S.C. § 2251(c). In relevant part, § 2251

proscribes “employ[ing] . . . any minor to engage in . . . any sexually explicit

conduct outside of the United States . . . for the purpose of producing any visual

depiction of such conduct,” and “transport[ing] such visual depiction to the United

States.” Id.69 The statute carries a mandatory minimum of 15 years’

imprisonment and a maximum of 30 years’ imprisonment. Irey pled guilty and

was sentenced to 17.5 years’ imprisonment.70

69 As stated in the text, § 2251(c) makes it a crime to employ a single minor in committing the offense. Irey’s indictment, however, alleged that he employed “minors” in committing the offense. 70 Irey was sentenced not only for committing the offense alleged in the indictment, but for committing several uncharged offenses as well. In imposing sentence, the district court adopted the following provision:

Pursuant to U.S.S.G. § 2G2.1(d)(1), if the offense involved the exploitation of more than one minor, Chapter Three, Part D (Multiple Counts) shall be applied as if the exploitation of each minor had been contained in a separate count of conviction. There were at least forty minors exploited. The highest offense level

199  1. Guidelines Calculation

Irey’s sentencing process began with the presentence investigation. The

PSI set out Irey’s conduct in eighteen paragraphs. Because the court has already

detailed that conduct, I will not replicate it here. Suffice it to say that Irey flew to

Cambodia on numerous occasions, hired child prostitutes, photographed and

videotaped himself having sex with them, brought the images back to the United

States, and traded them on child pornography websites. The PSI found that Irey

had abused over forty children.

Section 2G2.1 of the Guidelines applied, which carried a base offense level

of 32.71 The PSI found four specific offense characteristics, which increased the

allowable by the guidelines is a level 43. If the exploitation of each of the forty minors is scored as if it were contained in a separate count, the offense level would be well over the available maximum level of 43. Therefore, only two groups were utilized in determining the offense level.

As the court’s opinion correctly states, the Guidelines sentencing range (according to the PSI, which the district court adopted) called for life imprisonment, see ante at 12, whereas the statutory maximum penalty for Irey’s one-count conviction was 30 years’ imprisonment. The Principles of Federal Prosecution instructs that prosecutors, in advising the grand jury, recommend that the grand jury indict the putative defendant “with the commission of additional offenses when additional charges . . . are necessary to ensure that the . . . indictment . . . provides the basis for an appropriate sentence under all the circumstances of the case.” § 9-27.320. See supra note 41. I assume that the prosecutor knew that Irey would have to be charged with additional § 2252(c) violations in order to “provide[ ] the additional basis for an appropriate sentence under all the circumstances of the case,” i.e., a sentence that would be commensurate with the Commission’s Guidelines determination of what would be appropriate. The prosecutor either presented the grand jury with additional charges but it refused to indict, or did not present them at all. 71 Section 2G2.1 covers three crimes: 18 U.S.C. §§ 1591 (sex trafficking of children), 2251 (sexual exploitation of children), and 2260 (production of child pornography for

200 offense level by 12: 4 levels because the offense involved minors under age

twelve; 2 levels because the offense involved sexual contact; 2 levels because the

offense involved distribution of child pornography; and 4 levels because the

offense portrayed sadistic or masochistic conduct. Two more levels were added

under the Guidelines’ “multiple counts” rules because, under § 2G2.1(d),

“whether specifically cited in the count of conviction or not, each such minor shall

be treated as if contained in a separate count of conviction.”72 U.S.S.G. § 2G2.1

cmt. n.5. Finally, the PSI reduced the offense level by 3 levels based on its

finding that two adjustments applied: 2 levels because Irey accepted responsibility

for the crime, and 1 level because he provided timely notification of the intent to

plead guilty. All told, Irey’s total offense level was 43.

Because Irey had no criminal convictions, he fell into criminal history

category I. An offense level of 43 and a criminal history category I yielded a

Guidelines sentencing range of life imprisonment, which well exceeded the

statutory maximum. The Government did not object to this calculation. Irey

objected to the use of the 2006 Guidelines, the PSI’s representation of his ability

importation to the United States). 72 The probation officer applied the multiple counts rules for only two counts of conviction because “[i]f the exploitation of each of the forty minors is scored as if it were contained in a separate count, the offense level would be well over the available maximum level of 43.” See supra note 70.

201 to pay restitution, and the PSI’s statement that there were no grounds for departing

from the Guidelines on the grounds that “Irey’s psychiatric condition and his lack

of a criminal record support a sentence below the advisory guideline range.” In

support, Irey attached a report of Dr. Fred Berlin, which explained Irey’s

psychiatric condition. (Def.’s Objection to Presentence Investigation Report 2.)

2. Sentencing Memoranda

The parties filed sentencing memoranda in advance of the sentencing

hearing. The Government filed its memorandum first, which totaled five pages.

After a two-paragraph recitation of the facts, the Government asked for a

Guidelines sentence. Anticipating Irey’s case for an outside-Guidelines sentence,

the Government argued that U.S.S.G. § 5K2.0(b) governs departures in child sex

abuse cases; § 5K2.0(b) only permits departures on grounds authorized by the

Commission; and the Commission had not authorized departures on the basis of

diminished capacity, aberrant behavior, or family ties and responsibilities.

Although the Government recognized that Booker invalidated § 5K2.0(b), it urged

the court to defer to Congress’s policy preferences and pointed out that doing so

would be consistent with § 3553(a)(5)’s instruction to take into account the

Commission’s policy statements. Finally, the Government argued that if the “case

is atypical, it is because of aggravating, not mitigating, factors,” and that Irey’s

202 conduct and characteristics clearly fell within the heartland of the Guidelines.

Accordingly, the Government asked for a Guidelines sentence.73

Irey’s eleven-page sentencing memorandum was more substantial. Irey

argued that in light of his acceptance of responsibility, pedophilia, history as a

positive contributor to society, lack of criminal history, and low risk of recidivism,

a sentence below 30 years’ imprisonment was reasonable. (See Def.’s Sentencing

Mem. 1.) That said, Irey “acknowledged” the “serious nature” of his conduct and

“conceded” that a substantial term of imprisonment was appropriate. (Id.)

Accordingly, Irey asked for a sentence of 15 to 20 years’ imprisonment followed

by a substantial term of supervised release. (Id. at 11.)

In arguing for a below-Guidelines sentence, Irey cited three child

pornography cases where a district court’s downward variance was affirmed on

appeal. Irey then focused on the § 3553(a) factors and the parsimony principle

and argued that less than 30 years’ imprisonment would be appropriate because:

(1) at 50 years old, Irey would be an old man when released from prison even if he

served just the 15 year minimum sentence; (2) Irey’s expert psychological reports

73 The Government’s memorandum did not address how the Guidelines calculation fit the particular facts of the case in light of § 3553(a). The Government did not propose any § 3553(a) findings or identify how its proposed sentence fulfilled the § 3553(a)(2) purposes. Its only reference to any § 3553(a) factor was to (a)(5), which requires consideration of the Commission’s policy statements. The Government did not cite any evidence beyond what was in the record and the PSI; it focused its arguments on the Guidelines.

203 demonstrated that he is a pedophile who had a “limited ability to control the

behavior supporting the offense of conviction” and presented a “low risk of

recidivism”; and (3) that Irey still had the support of his family. (Id. at 9.) Irey

also briefly criticized the Guidelines in light of § 3553(a), arguing that some of the

specific offense characteristics were cumulative. (Id. at 10.) In terms of evidence,

Irey submitted two expert witness reports and numerous character letters from his

family and friends.

3. Sentencing Hearing

The district court did not follow the sentencing hearing procedure I have

outlined.74 The sentencing hearing began with the district court adopting the PSI’s

findings of fact and Guidelines applications. But rather than hear argument on

how well the Guidelines approximated the § 3553(a) factors, the court turned to

Irey and his plea for mitigation.

Irey put on nine witnesses, including himself. His “star” witness, however,

was a psychiatrist, Dr. Shaw. On direct examination, Dr. Shaw essentially

testified that Irey was a pedophile who presented a “moderate to low risk of

recidivism” based on “empirically validated actuarials.” Before permitting cross-

examination, the court asked Dr. Shaw whether pedophilia is an illness and

74 This is not entirely surprising given the courts of appeals’ confusion regarding the proper way to review sentences. See infra note 84.

204 whether a pedophile who acts out does so out of “rational free will.” This resulted

in the exchange that the court details and criticizes at length. See ante at 83–87.

On cross-examination, the Government did not impeach Dr. Shaw in any

meaningful way.75 After Dr. Shaw, Irey put on eight character witnesses. Finally,

Irey briefly testified to apologize for his crimes. After entering this evidence,

Irey’s counsel made his argument, which rehashed with some embellishment the

argument contained in his sentencing memorandum.76 At the end of the day, Irey

75 The Government simply had Dr. Shaw admit: (1) Irey was a pedophile with interest in children younger than 13; (2) the actuarials used had control groups that included rapists and pedophiles who were interested in children above the age of 13; (3) that depression and alcoholism do not cause pedophilia; and asked a series of questions designed to elicit the depth of the expert’s knowledge of Irey’s crime. (Sentencing Hr’g Tr. 21–24.) 76 Among other points, Irey’s counsel argued:

[W]e submit, Your Honor, that a 360-month sentence here is greater than necessary for Mr. Irey in light of the mitigation that’s been presented.

There is no way to minimize . . . the gravity of the acts with which Mr. Irey is charged. You’ve heard the mental health professionals tell you that this is a compartmentalized area of his whole being that is a result of his pedophilia, which is a diagnostic criteria for psychiatric care.

What I gathered from Dr. Shaw’s testimony and the best I could from Dr. Berlin’s report is that the behavior of a pedophile is not totally volitional, that is, it is dictated in some degree by the disease itself. . . .

....

[Irey] understands that he needs to be punished. . . . But he asks the Court to give him some consideration for the rest of his life, separate and apart from the crime he has committed.

....

205 argued that a sentence of between 15 and 20 years’ imprisonment with up to a

lifetime of supervised release would be sufficient but not greater than necessary to

comply with § 3553(a).

Then came the Government’s case. The prosecutor put on no witnesses and

offered no evidence with the limited exception of a few sample images it showed

the court during the course of the argument. The prosecutor began her argument

with the observation that “the defendant is not being prosecuted for being a

pedophile . . . . As an alcoholic doesn’t have to drive a car, a pedophile doesn’t

have to put themselves in a brothel in Cambodia, which this defendant did for

years and years . . . .” (Sentencing Hr’g Tr. 53–54.) She then emphasized that

this was not a child pornography possession case, but a production case and that

Irey “ruined, just absolutely and forever ruined over 50 children’s lives,”

sometimes smiling while he did it. (Id. at 54–55.) Asking the court to look at the

sample images, the prosecutor explained that the children were between 4 and 6

years old and that Irey’s distribution of the images over the Internet had made the

pictures infamous. She encouraged the court to consider the offense, the

You’ve heard that he’s treatable. You’ve heard that he’s a low risk of recidivism. That would make him 66 or 71 when he got out, if he served the entire sentence. He would be an old man. We ask you to consider a sentence less than the guideline’s recommended sentence.

(Sentencing Hr’g Tr. 49–52.)

206 victimization, and the “message we send to people who would do this.” (Id. at

55–56) In the end, the prosecutor focused on the “viciousness” of Irey’s

crime—over 1200 images of “torture” and some of the worst child pornography

the agents had ever seen—and asked the court to impose a 30 year sentence. (Id.

at 56–57.)

4. District Court’s Findings

After hearing from both parties, the court made its findings on the record.

The court first explained its task:

I take into account the guideline score and consider that as a benchmark in terms of imposing an appropriate sentence in a given case, and that benchmark needs to be kept in mind throughout the analysis . . . . But what I need to do after determining the guideline score is to look at the other 3553(a) factors on an individualized basis in an effort to determine an appropriate sentence for this particular case.

(Id. at 57.)

Without saying anything more about the Guidelines, the court launched into

an analysis of the § 3553(a) factors, beginning with § 3553(a)(1)—the nature and

circumstances of the offense and the history and characteristics of the offender.

The court characterized the offense as “horrific”: “The victims were numerous and

perhaps the most vulnerable of the world’s society. So I don’t think that there’s

any question but we’re dealing with here with an offense that rises to the very top

207 in terms of seriousness and its effect on other human beings.” (Id. at 58.

(emphasis added.)) Summarizing, the court found that “the seriousness” of the

offense “certainly does not mitigate in favor of any leniency.” (Id.) Turning to

Irey’s history and characteristics, the court found that Irey had been a good family

man and community member, the acts that brought him before the court were “not

purely volitional” and “due in substantial part to a recognized illness,” and he had

a “low” risk of recidivism. The recidivism finding turned on two points: (1) the

court credited the expert testimony, and (2) Irey’s age—as the court put it, “by the

time he gets out of prison he’ll most likely be at an age where recidivism would be

unlikely, just from a physiological standpoint.” (Id. at 59–60).

The court then skipped § 3553(a)(2)(A), jumping to § 3553(a)(2)(B) and

(C). Regarding general deterrence, the court found that a serious sentence would

“hopefully” deter others, but that conclusion might not “rationally follow[]”

because of the illness of pedophilia. (Id. at 60.) Turning to specific deterrence,

the court referred to its findings on § 3553(a)(1), reiterated that the mental health

professionals categorized Irey as presenting a low risk of recidivism, and therefore

found that society did not need “further protection from him, at least beyond the

statutory minimum sentence.” (Id. at 61.)

Finally, the court seemed to return to § 3553(a)(2)(A), stating “[i]t comes

208 down to my view of what promotes respect for the law and provides just

punishment.” (Id.) Here is the entirety of its discussion: “as indicated, I think that

a 30-year sentence, given the personal factors that I have touched upon, is greater

than necessary to accomplish the statutory objectives. On the other hand, in light

of the seriousness of the crimes, I think a sentence above the mandatory minimum

is called for.” (Id.)

5. Final Sentence and Objections

The court immediately—without hearing any argument on the application

of the parsimony principle to its findings—announced the sentence. The court

settled on 210 months’ imprisonment (or 17.5 years), a special assessment of

$100, forfeiture, and a lifetime term of supervised release (which included a

mandatory substance abuse and mental health program specializing in sex

offender treatment). (Id. at 61–62.)

In accordance with Jones, the court then asked whether there was any

objection to the sentence or the manner in which it had been pronounced. The

prosecutor objected to “the extent of the variance, which is almost half, and based

on the factors adduced in this record, particularly the seriousness and long-term

nature of the offense, [that] the extent of that variance would be unreasonable.”

The court merely responded that the sentence was “more like 60 percent of the

209 guideline, not half.” (Sentencing Hr’g Tr. 65.)

B. Why the Sentence Must be Vacated and Remanded

Irey’s sentence must be vacated and the case remanded for resentencing.

As I explained in part II.E, supra, a district court abuses its discretion in imposing

a sentence when it follows improper procedures, bases its decision on an incorrect

interpretation of law or clearly erroneous factfindings, or when the reviewing

court is left with the definite and firm conviction that the court committed a clear

error of judgment in making its sentencing decision. The Government objected to

Irey’s sentence on substantive reasonableness grounds, and I would vacate Irey’s

sentence on those grounds: the sentence imposed cannot be reconciled with the

district judge’s factfindings on § 3553(a)(2)(A).77

When making his findings on § 3553(a)(1), the judge remarked that when

77 I would also find that the district court followed improper procedures and committed legal errors by not following the model that I set forth, had the Government objected on those grounds. This is the case for at least two reasons. First, the district court failed to follow the requisite adversarial procedure. Importantly, it did not adequately address either the Guidelines recommendation or the Government’s request for a 30 year sentence—that is, it neglected to articulate the reasons why such a sentence was greater than necessary to satisfy the § 3553(a)(2) purposes. Gall clearly indicates that the failure to explain a deviation from the Guidelines range constitutes error. Gall, 552 U.S. at 51, 128 S. Ct. at 597 (explaining that the court must “adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range”). Here, the court made no effort to explain why it sentenced Irey to 17.5 years’ imprisonment when the Guidelines called for 30 years’ imprisonment. Second, it is impossible for this court to determine which § 3553(a)(2) purpose drove the sentence. This is not to be overly critical of the district court. In this circuit, the law governing sentencing has been at sea. This circuit’s precedent has not made clear the steps a district court must follow, nor has it clarified the importance of making findings regarding the (a)(2) purposes. The district judge followed the procedural and substantive law as best he could discern it.

210 considering the “nature and circumstances” of the offense, the crime “r[ose] to the

top” in terms of seriousness and that the “seriousness of the offense . . . did not

mitigate in favor of any leniency.” On (a)(2), after explaining why the need for

specific deterrence counseled a sentence of no more than 15 years’ imprisonment

based on Irey’s pedophilia, age, and family ties, the court turned to the sentencing

purpose of punishment, (a)(2)(A). The entirety of the court’s discussion on (A)

was as follows:

It comes down to my view of what promotes respect for the law and what provides just punishment. I think that a 30-year sentence, given the personal factors that I have touched upon is greater than necessary to accomplish the statutory objectives. On the other hand, in light of the seriousness of the crimes, I think a sentence above the mandatory minimum is called for.

(Id. at 61.)78

78 Given the context and content of this finding, it is unclear that the court understood the proper § 3553(a)(2)(A) inquiry. The court did not explain what it meant by “personal factors.” It may have been referring to Irey’s low risk of recidivism, which it had just found. If so, the court erred because a finding on specific deterrence has no bearing on (a)(2)(A). As I note in part II.B, supra, culpability does bear on the (a)(2)(A) need. For this reason, criminal history can be relevant to (a)(2)(A). U.S.S.G. Ch.4, Pt.A, intr. comment. Even though criminal history might be relevant to both (a)(2)(A) and (a)(2)(C), that does not mean that the court’s finding regarding specific deterrence (which will be based on a number of factors, including criminal history) has any bearing on the (a)(2)(A) need. Of course, the court may have simply been referring to the same personal factors it had drawn on for the § 3553(a)(2)(C) analysis to set up an independent § 3553(a)(2)(A) analysis. Generally, considering an offender’s personal characteristics for their impact on the need for just punishment for the offense and the need to promote respect for the law is permissible. For example, it stands to reason that someone who acts under duress is less culpable and therefore should receive less punishment than an ordinary offender. It also stands to reason that the court’s failure to take account of that difference would promote disrespect for the law. In such cases, however, the court must explain its reasoning.

211  The inquiry a court should conduct on (a)(2)(A) involves three steps: (1)

making findings regarding the seriousness of the offense, the need to promote

respect for the rule of law, and the need for just punishment; (2) weighing the

three considerations against each other; and (3) making findings on the sentence

needed to meet the § 3553(a)(2)(A) purpose.79 The district court, in making its

(a)(2)(A) findings, failed to follow these three steps. While it mentioned the need

to “promote[] respect for the law” and “provide[] just punishment,” it made no

intelligible findings on these inquiries and gave no indication that it had

considered facts crucial to any determination of the need for “just punishment”

and the need “to promote respect for the law” (for example, the sentences other

offenders received).80 Similarly, although the court stated here that the

seriousness of the offense “called for” “a sentence above the mandatory

minimum,” it made no specific findings on the seriousness of the offense when

conducting the (a)(2)(A) inquiry. I do know, however, what the court would find

on the seriousness of offense from what it said during the (a)(1) inquiry. There, it

found that the offense was “horrific,” “rises to the very top in terms of

79 The court’s narrow focus on Irey’s personal characteristics belies that it was conducting this analysis. 80 It is unclear why the court omitted the “seriousness of the offense” when it said “it comes down to my view of what promotes respect for the law and what provides just punishment.” It may have been because the court thought it had settled the issue of the seriousness of the offense during the § 3553(a)(1) inquiry.

212 seriousness,” and that “in terms of the . . . seriousness of [the offense], the long-

standing, long-term engagement in it certainly does not mitigate [sic] in favor of

any leniency.”

Therefore, all I know about the district court’s findings on (a)(2)(A) is that

it found the offense to be very serious. It is inconceivable that the judge’s finding

on seriousness of the offense alone would translate into a sentence at the bottom

half of the statutory sentencing range of 15 to 30 years, let alone a sentence only

two and a half years above the statutory minimum. The court, in conducting its

(a)(2)(A) inquiry, may have concluded that the three relevant considerations were

in tension—with the seriousness of the offense counseling a sentence at or near

the top of the statutory range, but, for example, with Irey’s impaired volition and

advanced age decreasing the need for just punishment and respect for the law. If

this were the case, the evidence in the record could support a sentence of 17.5

years,81 but it is not our province to make this explanation for the judge. Without

making intelligible findings on just punishment and respect for law, and without

explicitly weighing the three inquiries and reaching a conclusion on how they bore

81 On the other hand, if the district court’s findings on just punishment and respect for the law were consistent with his finding on the seriousness of the offense, (a)(2)(A) would drive Irey’s sentence, and a sentence of 17.5 years could not be reasonable. Because the judge’s findings on (a)(2)(A)—unlike the three subsidiary inquiries under (a)(2)(A)—cannot be weighed against the other (a)(2) factors, the sentence imposed would have to be harsh enough to satisfy the strong (a)(2)(A) need.

213 on the (a)(2)(A) need, I simply cannot say on appellate review that the sentence

imposed was supported by the district court’s factfindings. All I have is the

district court’s finding on the seriousness of the offense, and I know that it cannot

be reconciled with the sentence imposed. No rational judge could have sentenced

Irey to 17.5 years based on the only intelligible finding—that seriousness rose to

the top for this “horrific” crime.82 I would therefore vacate Irey’s sentence on the

ground that it is not supported by the district court’s findings, as I am able to

understand them.83

82 Contrary to the court’s characterization of my opinion, I would not vacate Irey’s sentence on the ground that the district court’s findings are insufficiently “detailed” or “lacking in specificity or effort.” Ante at 68, 72. My point is not, as the court implies, that a district court’s findings need be of a certain length or belabor unnecessary points. My point on substantive reasonableness is that a district court’s findings must be reconcilable with the sentence imposed. Had the district court imposed a sentence that was reconcilable with the (a)(2)(A) findings it made, I would not vacate Irey’s sentence on substantive reasonableness grounds, even if the district court had failed to make proper (a)(2)(A) findings on respect for the law and just punishment. In this instance, I would vacate the sentence because the findings the district court made on the seriousness of the offense cannot be reconciled with the sentence imposed, and given the district court’s failure to properly address the other (a)(2)(A) considerations, I cannot assume that they balanced the court’s finding on seriousness of the offense. 83 It is also unclear what the district judge’s findings on general deterrence were and whether they supported the sentence, though I need not address this question because it is clear that the sentence imposed was not supported by the judge’s findings on (a)(2)(A). Here is the entirety of the court’s discussion of § 3553(a)(2)(B):

There are other aspects of the statute that essentially are subjective in nature. Of course, adequate deterrence to criminal conduct. I mean a serious sentence is hopefully going to deter others from conducting similar affairs, although when we’re dealing with an illness like this, I’m not sure that that rationally follows. But, nevertheless, deterrence is an appropriate consideration, and a stiff sentence is in keeping with the seriousness of this offense.

214  I would remand Irey’s sentence to the district court so that the district court

can make (a)(2) findings and resentence Irey accordingly—rather than making our

own (a)(2) findings to determine whether the sentence is reasonable. To do so, we

would have to step out of our role as a reviewing court and assume the role of

resentencer. As I now explain, this is precisely the error the court makes today.

IV. The Court’s Approach

Today, the court needlessly assumes the role of resentencer. In so doing, it

cements this circuit’s answer to a question that continues to vex the nation’s

courts of appeals: after Booker, what does appellate review of sentences for

substantive “reasonableness” under an abuse of discretion standard mean? 84 The

(Id. at 60.) The court’s statement that general deterrence is “essentially subjective in nature” indicates that the court did not understand the § 3553(a)(2)(B) inquiry. The inquiry includes the incidence of the crime in the community and the community view of the offense. The court should have taken into account its earlier finding that child pornography is an “epidemic,” driven by its ready availability on the Internet. Regardless, it is unclear what the court found at the end of the day regarding the need for general deterrence—whether it reasoned that the need for general deterrence should be discounted because of the illness of pedophilia or whether the need for general deterrence was great and counseled a harsh sentence. If it were the latter, the sentence imposed may not be sufficient to satisfy the need for general deterrence as found by the district judge. 84 The federal courts of appeals, including this court, approach substantive reasonableness review inconsistently. This is not surprising since, as the Supreme Court itself has recognized, “Apprendi, Booker, Rita, Gall, and Kimbrough have given the lower courts a good deal to digest over a relatively short period.” Spears v. United States, 129 S. Ct. 840, 845 (2009) (per curiam) (quotation omitted). Specifically, the courts and their judges differ in the amount of deference they purport to afford the district court’s weighing of the § 3553(a) factors. Compare United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (“[W]e may find that a district court has abused its considerable discretion if it has weighed the factors in a manner that demonstrably yields an unreasonable sentence. We are therefore still required to make the

215 correct answer, as I demonstrate in parts III and IV, supra, is to apply classic

abuse of discretion review. The court’s answer is shocking: a simple objection

that a sentence is “unreasonable” grants a disappointed party the functional

equivalent of a new sentencing hearing before the court of appeals. The court

considers evidence and arguments never offered to the district court, makes new

findings, reweighs the § 3553(a) factors, and concludes as a matter of law that

William Irey must be sentenced to 30 years’ imprisonment. In the process, the

calculus ourselves . . . .”) and United States v. Tomko, 562 F.3d 558, 585-86 (3d Cir. 2009) (Fisher, J., dissenting) (“As the remainder of our analysis reveals, the District Court’s over- reliance on § 3553(a)(1) as justification for the significant qualitative and quantitative variance it granted pales in comparison to the numerous § 3553(a) factors which suggest that a term of imprisonment is warranted . . . . [W]e conclude that the relevant § 3553(a) factors advocate in the strongest possible terms for a sentence including a term of imprisonment.”) with Tomko, 562 F.3d at 574 (majority opinion) (“Accordingly, the substantive reasonableness of each sentence must be evaluated on its own terms, based on the reasons that the district court provided, in light of the particular facts and circumstances of that case.”) (emphasis added) and United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008) (“We may not examine the weight a district court assigns to various § 3553(a) factors, and its ultimate assessment of the balance between them, as a legal conclusion to be reviewed de novo.”). Moreover, appellate courts and circuit judges across the country have openly expressed confusion about the appropriate role of appellate courts. See, e.g., United States v. Feemster, 572 F.3d 455, 467 (8th Cir. 2009) (Colloton, J., concurring) (“[O]ne searches in vain for a principled basis on which to conduct a consistent and coherent appellate review for reasonableness.”); United States v. Funk, 534 F.3d 522, 530 (6th Cir. 2008) (Boggs, C.J., dissenting) (“This case represents essentially a judgment call under the rather unclear standard of ‘reasonableness’ that we have been given by the Supreme Court in the wake of Rita, Kimbrough, and Gall.”). Likewise, commentators have noted the Supreme Court’s seemingly contradictory imperatives. E.g.,Frank O. Bowman, III, Debacle: How the Supreme Court has Mangled American Sentencing Law and How It Might Yet Be Mended, 77 U. Chi. L. Rev. 367, 459–60 (2010) (claiming that the Supreme Court’s entire line of Sixth Amendment sentencing cases presents a “tangle of rules and exceptions” that “is obviously neither simple nor, as illustrated at length above, logical”); Lindsay C. Harrison, Appellate Discretion and Sentencing after Booker, 62 U. Miami L. Rev. 1115, 1115–16 (2008) (“What has resulted is primarily confusion about the role of the appellate courts in reviewing sentences. Several often seemingly conflicting imperatives are at play after Booker . . . .”).

216 court does immense and immeasurable institutional damage. Part A sets out the

court’s approach; Part B explains the harm that it causes.

A. Appellate Resentencing

According to the court, the question presented is whether Irey’s sentence is

“reasonable.” Ante at 35. In determining whether the sentence is “reasonable,”

the court unabashedly explains that its job is to take the facts found by the district

court and any others it finds in the record, and then make its own findings for each

§ 3553(a) factor. Id. at 58–59. After making its own findings, the court reweighs

the § 3553(a) factors and determines for itself what range of sentences is

reasonable. Id. at 58 (“In order to determine whether that has occurred, we are

‘required to make the [sentencing] calculus ourselves’ and to review each step the

district court took in making it.”) (quoting United States v. Pugh, 515 F.3d 1179,

1191 (11th Cir. 2008)). By “reasonable,” the court means the sentencing range

that it thinks is objectively correct to satisfy the sentencing purposes of § 3553(a).

The court even goes so far as to declare, incorrectly and without any

support, that the weight of facts under § 3553(a) presents a question of law. Id. at

59 (“[T]he importance of facts in light of the § 3553(a) factors is not itself a

question of fact but instead is an issue of law.”) (emphasis added); id. at 118, n.33

(justifying the court’s new finding on the need for specific deterrence in sex crime

217 cases because “[n]o member of this Court . . . has ever before suggested that in

determining the law we ought to confine ourselves to the decisions that were cited

in the district court”) (emphasis added).85

In reaching this conclusion, the court disregards the Supreme Court’s

analysis in Gall. See, e.g., Gall, 552 U.S. at 56–57, 128 S. Ct. at 600–602,

(reversing the Eighth Circuit because “[a]lthough [it] correctly state[ed] that the

appropriate standard of review was abuse of discretion, it engaged in an analysis

that more closely resembled de novo review of the facts presented” by, for

example, concluding that the district court “gave too much weight to Gall’s

withdrawal from the conspiracy”) (quotations omitted); United States v. Smart,

518 F.3d 800, 808 (10th Cir. 2008) (reversing precedent as inconsistent with Gall

that had reviewed “de novo the weight assigned to various § 3553(a) sentencing

factors because we considered this weighing process to be a question of law.”). It

also ignores this circuit’s precedent—we have repeatedly held that “[t]he weight

given to any § 3553(a) factor is within the sound discretion of the district court

and we will not substitute our judgment in weighing the relevant factors.” E.g.,

85 The court does not seem to be claiming that whether a fact is relevant, in the evidentiary sense, presents a question of law. Rather, the court says that a given fact’s “importance,” that is, weight, in deciding a § 3553(a) issue presents a question of law. See ante at 60 (explaining that the district court cannot write facts out of the record by ignoring them, even if it reflects the court’s judgment that “those facts are not important” to the § 3553(a) inquiry).

218 United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007); United States v.

Gardner, 363 Fed. App’x 688, 690 (11th Cir. 2010) (unpublished); United States

v. Pertil, 344 Fed. App’x 569, 573 (11th Cir. 2009) (unpublished).86

Whatever the case, because questions of law are reviewed de novo even

under the abuse of discretion standard,87 the court does not give—or even think it

owes—deference to the district court’s § 3553(a) analysis. See ante at 44–45

(“Section 3553(a) plays a critical role in appellate review of sentences, just as it

does in the initial sentencing decision” and the court of appeals must “apply those

same factors in determining whether a sentence is reasonable.”) (emphasis added).

The court purports to apply abuse of discretion because it will give some

86 Though the court is convinced that it is not committing the same mistake as the Eighth Circuit in Gall—conducting an inquiry of the § 3553(a) factors akin to de novo review—there are striking similarities between the two analyses. Compare United States v. Gall, 446 F.3d 884, 889 (8th Cir. 2006) (“First, the district court gave too much weight to Gall’s withdrawal from the conspiracy because the court failed to acknowledge the significant benefit Gall received from being subject to the 1999 Guidelines.”), rev’d 552 U.S. 38, 128 S. Ct. 586, and id. at 891 (“[T]he district court did not properly weigh the seriousness of Gall’s offense. While the district court observed that Gall’s offense level did not adequately reflect the offense conduct because it was based ‘solely on drug quantity,’ the district court ignored the serious health risks ecstasy poses.”), with ante at 92–95 (“The facts about Irey as a husband, father, and member of the community are not disputed, the question is how to weigh them for sentencing purposes. . . . We would find grossly unreasonable, however, any suggestion that the credit Irey may be due for his family’s feelings for him could even remotely approach the heavy weight stacked against him for the criminal acts he committed.”), and ante at 123 (“With child sexual abuse of the kind that we know Irey is capable of and has committed . . . . [E]ven with an assumed low risk of recidivism following release in 15 years and 3 months, imprisonment for that length of time does not afford adequate protection from further crimes by him.”). 87 See Koon v. United States, 518 U.S. 81, 100, 116 S. Ct. 2035, 2047 (1996) (“[W]hether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point.”).

219 deference to a district court’s conclusion. Specifically, the court notes that “[a]

district court’s sentence need not be the most appropriate one, it need only be a

reasonable one” and because “we are to vacate the sentence if, but only if, we are

left with the definite and firm conviction that the district court committed a clear

error of judgment in weighing the § 3553(a) factors.” Id. at 60, 62 (quotation

omitted). But the line between “unreasonable” and “most appropriate” blurs. And

it blurs quickly when the court conceives of its role as to conduct the § 3553(a)

inquiry for itself and identify the range of sentences the district court could have

reasonably imposed (as opposed to reviewing the district court’s reasoning from

its § 3553(a) factfindings to its conclusion). Once the court of appeals has

independently identified what it believes is the range of permissible sentences

(explicitly or implicitly), appellate review becomes an inquiry into whether the

district court’s sentence falls within the range of sentences it, the court of appeals,

would have imposed. This approach amounts to de novo review in the guise of

abuse of discretion. See Curtiss-Wright Corp. v. Gen. Electric Co., 446 U.S. 1,

10, 100 S. Ct. 1460, 1466 (1980) (instructing that when conducting abuse of

discretion review, the role of appellate courts is not to “reweigh the equities or

reassess the facts but to make sure that the conclusions derived from [the district

court’s] weighings and assessments are judicially sound and supported by the

220 record.”).88

What is worse, the court does not confine its new analysis of the § 3553(a)

factors to the evidence, arguments, and objections offered to the district court.89

88 The court relies on United States v. Taylor, 487 U.S. 326, 108 S. Ct. 2413 (1988), for the proposition that courts of appeals must scrutinize a sentencing decision more closely because a sentence is arrived at by considering a number of statutory factors. Ante at 59–60 & n.15. In Taylor, though—which addressed only the issue of whether a district court abused its discretion by dismissing charges with prejudice when the Government committed a Speedy Trial Act violation—the Supreme Court specifically limited its analysis to whether the factfindings supported the decision to dismiss the charges with prejudice. The Court started with the district court’s order—dismissing the charges with prejudice—and then looked to see whether the record supported that conclusion. Ultimately, because the district court did not fully explain its reasoning, the Court held that “[t]he District Court failed to consider all the factors relevant to the choice of a remedy under the Act. What factors it did rely on were unsupported by factual findings or evidence in the record.” Taylor, 487 U.S. at 344, 108 S. Ct. at 2423. Finding insufficient support in the record for the district court’s decision and refusing to conjure its own explanations, the Court held that the district court abused its discretion. Tellingly, the court did not conduct the Speedy Trial Act remedy inquiry for itself: It did not reach its own conclusions on the way each Speedy Trial Act factor cut and it did not decide whether the case should be dismissed with or without prejudice. Rather, because the decision is left to the district court’s discretion, the court simply returned the question to it for reconsideration. 89 The court contends that “much” of my criticisms on this score stem from the “faulty premise that the government made only a ‘simple objection’ that Irey’s sentence is ‘unreasonable.’” Ante at 138 n.44. With this mischaracterization of my position in hand, the court purports to defeat it by citing a number of our cases reaching the uncontroversial conclusion that a party need not repeat in the Jones colloquy arguments it had already made to the district court. See, e.g., United States v. Weir, 51 F.3d 1031, 1032 (11th Cir. 1995) (declining to apply the waiver rule when the district court “clearly understood the [party’s] position and specifically rejected it.”). My criticism is different. It is true that a general objection will preserve more specific arguments a litigant actually made to the district court, id., but a general objection does not preserve specific arguments that a litigant never made. Here, for example, the Government did argue in general terms that only a 30-year sentence would be reasonable due to the seriousness of Irey’s crimes. But the Government did not contend—as the court does today—that the good behavior credit would reduce Irey’s sentence, or that such a sentence would amount to “ less than four months for each of [Irey’s] 50 victims.” Ante at 103. Had the Government made these arguments and the others the court considers for the first time here, the district court may have imposed a different sentence. Since the Government did not, we may not consider them for the first time on appeal.

221 In so doing, the court ignores well-established rules of appellate procedure and

implicitly overrules United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990)

overruled on other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir.

1993) (en banc).90 In Jones, this court explicitly ruled out considering new

arguments and evidence in sentencing appeals. Thus, without explanation or

apology, the court works a revolution in the rules governing the scope of review.

The court’s willingness to do so underscores that its conception of substantive

reasonableness review bears no resemblance to traditional abuse of discretion

review.91

90 Any conclusion that objecting to a sentence’s “substantive unreasonableness” triggers the functional equivalent of a new sentencing hearing on appeal is tantamount to overruling Jones. Jones required that the district court have the first opportunity to correct its errors; an objection that a sentence is “substantively unreasonable” without explaining why does not give the court that opportunity. 91 In United States v. Brown, 415 F.3d 1257 (11th Cir. 2005), this court discussed abuse of discretion review in another fact-heavy, individualistic context. There, the issue was whether expert testimony could be admitted under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993). This court explained in some detail the reasons for abuse of discretion review, most notably that the “rules relating to Daubert issues are not precisely calibrated and must be applied in case-specific evidentiary circumstances that often defy generalization” and that “we don’t want to denigrate the importance of the trial.” Brown, 415 F.3d at 1266. On appeal, this court did not reweigh the Daubert factors to determine whether the district court abused its discretion. Instead, this court explained that even though the expert evidence met only one of the four Daubert factors, we could not say that in this “particular situation” the district court abused its discretion, especially “given the heavy thumb—really a thumb and a finger or two—that is put on the district court’s side of the scale.” Id. at 1268. The same should be true with sentencing. Sentencing decisions defy precise calibration and must be applied to the unique facts of specific cases. District courts are uniquely suited to make the judgment demanded by § 3553(a) and the parsimony principle, and reopening the record on appeal certainly diminishes the importance of the sentencing hearing.

222  Instead, the court conducts a free-wheeling inquiry—conjuring new

arguments and citing new evidence. With respect to § 3553(a)(1), for example,

the court creates for the first time an argument that the district court’s view of Irey

as a victim “permeated” and “tainted” the court’s weighing of the § 3553(a)

factors, although the prosecutor never objected to the characterization of Irey as a

victim. Ante at 80–81.92 The court also argues, for the first time, that the district

court clearly erred when it found that Irey’s misconduct was “not purely

volitional,” and that even accepting the district court’s finding on volition, the

case would still fall in the heartland because almost all pedophiles are child

molesters.93 Id. at 84–87. To prove both of these points, the court cites to expert

92 When I say “for the first time,” I mean that these arguments were not made to the district court. 93 I recognize, of course, that after the court explains why the finding was clearly erroneous, it states that it accepts the finding because the Government did not challenge it on appeal. But see ante at 84–85. If the court is truly accepting the finding, however, I do not understand why the court takes the time to conjure new evidence and arguments. It could be that though the court ostensibly accepts the district court’s volitional finding, its explanation that it is clearly erroneous is very important to its analysis. The court ultimately concludes that the finding “cannot reasonably carry much weight” because, at least in part, it is clearly erroneous. Id. If the court really accepted that Irey’s misconduct was “due in substantial part” to diminished capacity, id. at 85, it could not conclude—as it ultimately does—that the district court would have abused its discretion as a matter of law if it had imposed a sentence of even one day less than the statutory maximum. See id. at 137 (“Nothing less than the advisory guidelines sentence of 30 years, which is the maximum available, will serve the sentencing purposes set out in § 3553(a).”). In any event, my point is that when reviewing sentences, this court should not consider or conjure evidence and arguments that have never been offered to the district court. That is inconsistent with classic principles of appellate review and will cause immense damage to the institutional relationship we have with the district courts of this circuit.

223 evidence never offered to the district court.94 See id. at 83, 87 (citing Bruce J.

Winick, Sex Offender Law in the 1990s: A Therapeutic Jurisprudence Analysis, 4

Psychol. Pub. Pol’y & L. 505, 524 (1998), and Ryan C.W. Hall & Richard C.W.

Hall, A Profile of Pedophilia: Definition, Characteristics of Offenders,

Recidivism, Treatment Outcomes, and Forensic Issues, 82 Mayo Clinic Proc. 457,

458 (2007)).

Nor did the Government ever argue, as the court does, that the district court

clearly erred in finding that Irey had good character and had contributed positively

to his family and community. See id. at 89–95 (contending that, categorically,

anyone who commits the crime Irey committed and causes his family to lose its

business and home cannot be a good family man and have good character). Nor

did the Government argue to the district court that it should not have considered

Irey’s old age in his favor because to do so would reward him “for evading

detection and it is unreasonable to do that.” Id. at 96.

Similarly, in reweighing each of the § 3553(a)(2) purposes, the court

conjured new arguments and cited new evidence never heard by the district court.

Regarding the need for punishment, the Government never argued, as the court

94 Though I label this expert “evidence,” it is not technically evidence because it was not entered into the record. A more apt term might be “extra-record information.” Vining v. Sec’y, Dep’t of Corr., No. 07-15681, slip op. at 4 (11th Cir. June 28, 2010). Nevertheless, because it performs the function of evidence in the court’s analysis, I refer to it as such.

224 does, that the good behavior credit would reduce Irey’s sentence to 15.5 years,

which amounts to “less than four months for each of [his] 50 victims.” Id. at 103.

Nor did the Government argue that Irey’s sentence does not reflect the seriousness

of the offense because he received only 2.5 years longer than the 15 years he

would have served had he taken one lewd picture of a 17-year-old girl. Id. at 104.

With respect to general deterrence, the court’s entire analysis would be new

to the district court. The Government never argued that the need for general

deterrence is especially compelling in the child pornography context. But see id.

at 108–12. The Government never pointed to Supreme Court cases underscoring

that importance, or to appellate cases reversing district courts for questioning the

logic of general deterrence when pedophilia was involved. But see id.

The Government completely ignored specific deterrence at the sentencing

hearing.95 The Government never questioned, as the court does today, the district

court’s finding that a 65-year-old male would be too old for sexual activity from a

“physiological standpoint.” But see id. at 114–15. Obviously then, the

Government did not cite to published opinions involving sex offenders over age

60 to make this point. But see id. at 115–16. Nor did the Government enter

95 In fact, the Government stipulated that Irey fell into criminal history category I, which in essence means the Government stipulated that no prison time beyond that called for by his offense level was needed for specific deterrence. Accordingly, the Government never argued, for example, that Irey’s criminal history category under-represented his potential for recidivism.

225 expert evidence about the comparatively high recidivism rates of older sex

offenders. But see id. at 117 (citing Mark Motivans & Tracey Kyckelhahn,

Federal Prosecution of Child Sex Exploitation Offenders 2006, Bureau Just. Stat.

Bull., Dec. 2007 for the proposition that 7.3% of all sex offenders are over 60, and

Ryan C.W. Hall & Richard C.W. Hall, A Profile of Pedophilia: Definition,

Characteristics of Offenders, Recidivism, Treatment Outcomes, and Forensics

Issues, 82 Mayo Clinic Proc. 457 (2002), for the proposition that up to 44% of

pedophiles were in the older adult range (age 40 to 70 years) and that pedophiles

“offend in their later years at a greater rate than other sexual offenders”).

Still on specific deterrence, the Government never argued that a lifetime of

supervised release would be insufficient to protect the public by pointing to

Bureau of Justice statistics, other expert evidence, and cases demonstrating that it

is possible to recidivate when under supervision. But see id. at 118–21 (citing

Bureau of Justice Statistics, Dep’t of Justice, Federal Criminal Justice Trends,

2003, (2006); Loretta J. Stalans, Adult Sex Offenders on Community Supervision:

A Review of Recent Assessment Strategies and Treatment, 31 Crim. Just. &

Behav. 564 (2004); James L. Johnson, Sex Offenders on Federal Community

Supervision: Factors that Influence Revocation, Fed. Probation, June 2006;

Patrick A. Langan et al., Bureau of Justice Statistics, Recidivism of Sex Offenders

226 Released from Prison in 1994 (2003); 2009 Annual Report of the Director:

Judicial Business of the United States Courts (forthcoming spring 2010);

Protecting Our Nation’s Children from Sexual Predators and Violent Criminals:

What Needs to Be Done?, Hearing Before the Subcomm. on Crime, Terrorism,

and Homeland Security of the H. Comm. on the Judiciary, 109th Cong. 30 (2005)

(statement of Fred S. Berlin, M.D., Associate Professor, Johns Hopkins

University)).

Finally, with respect to § 3553(a)(6), the Government never argued that

Irey’s sentence would produce unwarranted disparity. Obviously, then, it never

cited twelve cases for the proposition that the defendants in those cases committed

a less serious crime than Irey but received a more serious sentence. Id. at 130–34.

If the court’s analysis leaves any doubt that the court has assumed the role

of resentencer, its conclusion removes it. After conducting the functional

equivalent of a new sentencing hearing, the court concludes that “[n]othing less

than the advisory guidelines sentence of 30 years, which is the maximum

available, will serve the sentencing purposes set out in § 3553(a).” Id. at 137.

Accordingly it vacates Irey’s sentence and remands the case with the instruction

that the district court impose a sentence of 30 years’ confinement. Id. at 140–41.

With this unprecedented step, it is indisputable that the court has resentenced Mr.

227 Irey.96

***

After today’s opinion, it is the law of this circuit that a party who is

disappointed by the sentence the district court has imposed may apply to this court

for resentencing.97 Except for live testimony, the disappointed party can brief

evidence never offered and arguments never articulated to the district court. From

its new vantage point, this court will then second-guess the district court’s

sentence. We will determine the range of objectively correct sentences based on

the new facts and new arguments; if the sentence handed down by the district

court falls outside of that range, we will reverse. Sometimes, that range could be a

single point. Here, the court holds that any sentence other than 30 years’

imprisonment would constitute an abuse of discretion—if the district court had

sentenced Irey to 29 years, 11 months, and 29 days, it would have abused its

96 Though we have reversed sentences on substantive reasonableness grounds before, we have never ordered the district court to impose a particular sentence. See, e.g., United States v. Livesay, 587 F.3d 1274, 1278–79 (11th Cir. 2009) (vacating a sentence and instructing that imprisonment was required but leaving the length of the term to the district court’s discretion); Pugh, 515 F.3d at 1204 (remanding without stating what the sentence should be); United States v. Martin, 455 F.3d 1227, 1241–42 (11th Cir. 2006) (same); Crisp, 454 F.3d at 1291–92 (same). 97 In this case, the Government is the disappointed party. But suppose the defendant were the disappointed party, claiming that the sentence the district court imposed was so severe as to be “unreasonable.” If the defendant had sandbagged the district court by withholding evidence that mitigated the need for punishment and by failing to cite the sort of published authorities cited in the court’s opinion, we would not consider the withheld evidence and published authorities (because we do not consider matters not presented to the district court) unless we invoked the plain error doctrine.

228 discretion as a matter of law.98 The court is not taking the abuse of

98 Not only is the court’s approach inconsistent with abuse of discretion review, it also risks reintroducing the constitutional infirmity cured by Booker. In short, the court’s approach turns the appellate court into the post-Booker Sentencing Commission: rather than the Commission’s Guidelines, the court of appeals will determine the bounds of a district court’s discretion by identifying the range of “reasonable sentences” for a given set of facts. Pre-Booker, the mandatory Guidelines set the Apprendi statutory maximum because, based only on the facts reflected by a jury verdict, a defendant could be sentenced to no greater than the sentencing range identified for his base offense level and criminal history category score. A defendant could receive a higher sentence if—but only if—the district court found facts to support specific offense characteristics or adjustments by preponderance of the evidence. This was true even though district courts could disregard the Guidelines in extraordinary circumstances, because in “most cases, as a matter of law, the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible.” United States v. Booker, 543 U.S. 220, 234, 125 S. Ct. 738, 750 (2005). This was also true even though the district court had virtually unfettered discretion to sentence a defendant within the range identified by the mandatory Guidelines. Transforming the Guidelines from mandatory to advisory cured the Sixth Amendment violation because the Court had “never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.” United States v. Booker, 543 U.S. at 233, 125 S. Ct. at 740. Thus, a defendant risked any sentence along the statutory range, so long as the district court did not abuse its discretion. Because the district court’s authority to exercise “broad discretion” to sentence offenders along the statutory range is what allows the Booker remedy to cure the Sixth Amendment violation of mandatory Guidelines, and because appellate review is the check on that authority, properly defining the scope of appellate review is essential.

Giving proper content to appellate review is the key to assuring that the advisory- Guideline remedy actually rights the Sixth Amendment wrong identified by Booker. If appellate review is too stringent, it will carve up statutory sentencing ranges in exactly the same way the Sentencing Commission’s mandatory Guidelines did. For example, suppose the statutory range for a particular crime is 5 to 40 years’ imprisonment. Suppose that in one case, the appellate court decides that for any defendant who commits the crime under X facts, the district court would necessarily abuse its discretion unless it imposed a sentence of at least 10 years’ imprisonment. Suppose that in another case, a defendant commits the same crime, again under X facts, and the appellate court decides that the district court would necessarily abuse its discretion if it imposed a sentence above 20 years’ imprisonment. After those two decisions, the court has created a sentencing range that is identical in all relevant respects to a mandatory- Guidelines sentencing range: as a matter of law, a defendant who violates the crime under X set of facts must receive a sentence of somewhere between 10 and 20 years’ imprisonment. If the defendant did not admit all of the facts, then the district court would base that sentence on judge- found facts by a preponderance of the evidence. The district judge would then have unfettered discretion to sentence a defendant who commits the crime under X facts from between 10 and 20 years, but would have no discretion to sentence beyond that range (just as the district judge had

229 discretion standard seriously.

B. Institutional Harm

The court’s willingness to resentence does immense and immeasurable

institutional damage. “‘It has been uniform and constant in the federal judicial

tradition for the sentencing judge to consider every convicted person as an

individual and every case as a unique study in the human failings that sometimes

unfettered discretion to sentence within the range of sentences identified by the mandatory Guidelines). Today, the court takes a step in this direction. The court conceives of its role as to determine what range of sentences is “reasonable.” In other words, the court is deciding as a matter of law the bounds of the district court’s discretion within the statutory range on the particular set of facts contained in this record. The court concludes that under the facts of this case, Irey must be sentenced to no less than 30 years’ imprisonment or the district court would necessarily abuse its discretion. If we follow the court’s approach and declare what range of sentences is objectively “reasonable” based on our own assessment of the § 3553(a) factors in light of a particular set of facts, we will, over time, carve up statutory sentencing ranges to the point that it will be possible to identify the maximum sentence that can be imposed based solely on the facts embodied in the jury verdict. In fact, after today, I fail to see how a district court could impose a sentence of less than 30 years for a materially similar defendant. Once that occurs, this court will have reintroduced the Sixth Amendment violation supposedly cured by Booker. The standard of review I set out in part II.E, supra, gives meaning to appellate review of sentences while avoiding this result as much as possible. Under my approach, this court is not in the business of reweighing all of the facts in the record, conducting a § 3553(a) inquiry de novo, and declaring a range of sentences that is objectively correct or “reasonable.” Rather, under my approach, when we reverse a sentence on substantive grounds, we are simply holding that under the non-clearly erroneous facts found by the district judge and in light of the district judge’s explanation, no rational judge could have imposed that sentence. We would not hold as a matter of law that on a given set of facts, only a sentence of at least so-many years’ imprisonment is reasonable. Nor would we decide the import of particular facts to the § 3553(a) inquiry for all time; for example, we would not hold, as the court does, that pedophilia-as-diminished-capacity can never form the basis for a downward departure in a sex crimes case. Such a standard gives district judges maximum discretion to sentence a defendant anywhere along the statutory sentencing range and thus is more consistent with the remedy fashioned by the Supreme Court in Booker.

230 mitigate, sometimes magnify, the crime and the punishment to ensue.’” Gall, 552

U.S. at 52, 129 S. Ct. at 598 (quoting Koon v. United States, 518 U.S. 81, 113,

116 S. Ct. 2035, 2053 (1996)). The district court is unquestionably the best

judicial actor to conduct this “unique study” and to undertake the open-ended and

fact-heavy § 3553(a) inquiry. See, e.g., Gall, 552 U.S. at 51–52, 129 S. Ct. at

597–98 (explaining that the district court is in a “superior position to find facts

and judge their import under § 3553(a) in the individual case” because it looks the

defendant and witnesses in the eye, gains insights not conveyed by the cold

record, and has extensive sentencing experience) (quotation omitted). The district

court’s effective use of its expertise, however, turns on the active participation of

the lawyers—the prosecutors and defense counsel—in the adversary proceeding

envisioned by Rita and Gall and fleshed out by my opinion today. Their

professionalism is vital to the sentencing process. Indeed, if sentences are to

inspire the confidence of the defendant and the public, the sentencing hearing in

the district court must be the “main event,” rather than a “tryout on the road” for

the real forum that will determine the sentence. Wainright v. Sykes, 433 U.S. 72,

96, 97 S. Ct. 2497, 2508 (1977).

Today’s decision sends the unmistakable message that the district court is

nothing but a tryout on the road. This diminishes the district courts’ institutional

231 role in the eyes of the public and the legal profession because it de facto strips the

district courts of their Congressionally given authority.99 If the district court

procedure is merely a tryout, a busy district court may be inclined to pay mere lip

service to its § 3553(a) duty and simply impose a Guidelines sentence;100 after all,

its sentence would only be tentative, subject to second-guessing on appeal. And

even if the district court wanted to do its duty, the prosecutor may not present the

government’s best case to the district court—better to wait and see what sentence

the court imposes before expending the government’s resources.101

99 In this case, the Government participated in the diminishment through the prosecutor’s failure to present a robust sentencing argument to the district court and failure to adequately call attention to the mistakes she believed the district court made. Defense counsel are required by the Sixth Amendment to perform at the highest professional level and to treat the sentencing hearing before the district court as the main event. If defense counsel’s performance is wanting, counsel may have to answer for it in a collateral proceeding alleging a violation of the defendant’s Sixth Amendment right to the effective assistance of counsel. The prosecutor, however, does not run the risk of having to answer to a district judge in a collateral proceeding on a charge of inept performance. 100 This would not only flout the Congressional command embodied in § 3553(a), it would also deny justice for either the United States or the defendant. If the facts and circumstances of the case call for a sentence outside the Guidelines sentencing range to satisfy the § 3553(a)(2) purposes of a federal sentence—and they often will—the sentence will not be tailored to the unique facts before the court, will not serve the parsimony principle, and will work an injustice on one of the parties. 101 District courts’ tendency to impose sentences within the Guidelines range worsens this already perverse incentive. This circuit’s district courts imposed Guidelines sentences in 65.6% of the cases from October 1, 2008 through September 30, 2009. See United States Sentencing Commmission, Sourcebook of Federal Sentencing Statistics, tbl. 26 (2009). The court’s approach gives the government every incentive to rest on the Guidelines and put on no § 3553(a) evidence before the district court (as the government frequently does). In the infrequent event that the district court imposes a below-Guidelines sentence, the government would lose nothing because it could make its § 3553(a) case for the first time before the court of appeals.

232  The court’s willingness to ignore time-honored contemporaneous objection

and procedural default rules diminishes the status of the district courts for another

reason.102 These rules are designed to force the parties to give the district court

everything it needs to make sound decisions and the first chance to fix any errors.

This, in turn, leads to an enhanced quality of judicial decision making, preserves

the sentence’s finality, and may prevent unnecessary appeals. The court’s

message to the prosecutors in this circuit is: don’t bother, there is no need to try to

put the district court in the best position to make decisions.

Sadly, our approach today diminishes the district court’s role for no good

reason. It transfers sentencing authority from district judges to the courts of

appeals, which lacks the district judges’ experience and expertise in imposing

criminal sentences. As the length of today’s opinion shows, even attempting to

duplicate the district judge’s § 3533(a) task requires a huge investment of this

court’s resources. Despite the huge investment, there is no real return: due to our

lack of experience and expertise, we are poorly suited to the job and will not

infrequently reach a wrong result. Moreover, our fact-intensive resentencing

102 Jones, after all, is simply an application of the contemporaneous objection rule to the sentencing context. Sentencing is unique because the district court is not bound by the evidence, the parties’ proposed findings and conclusions, and the parties’ arguments at the close of the hearing. If the district court bases the sentence on findings or arguments not articulated at the sentencing hearing, the parties must have an opportunity to object to the court’s findings and conclusions and obtain the correction of any error the district court may have made.

233 decisions will be incapable of generalization and will hinder our ability to

establish clear guidance for the district courts of our circuit. See Koon v. United

States, 518 U.S. at 98–99, 116 S. Ct. at 2046–47; see also Buford v. United States,

532 U.S. 59, 65–66 121 S. Ct. 1276, 1281 (2001) (explaining that if the question

presented “grows out of, and is bounded by, case-specific detailed factual

circumstances,” then the “value of appellate court precedent” is limited). Lastly,

as we fritter away our resources on sentencing appeals, other litigants in the

appellate queue will suffer.

This court is not well-suited to sentence offenders for another and even

more important reason. The Supreme Court has made abundantly clear the crucial

role that process plays in sentencing. See Gall, 552 U.S. at 49–50, 128 S. Ct. at

596–97. The public’s and the defendant’s confidence in the justice of a sentence

turn on how the sentencer arrived at it. Given the strictures of appellate review, it

is impossible for us to accord a defendant the process that is due. See e.g., Fed. R.

Crim P. 32(i). When this court resentences a defendant, it deprives him of a

meaningful hearing in which he has the right to address a judge who can look him

in the eye before deciding his fate. See Fed. R. Crim. P. 32(i)(4)(A)(2)(ii).

Because the defendant’s first notice of the reasons for the resentence and its

234 factual bases is provided by this court’s opinion imposing the sentence,103 he is

deprived of the right to object to the reasons and factual bases.104 And, crucially,

it deprives him of a right to appeal. Such treatment of a litigant not only breeds

disrespect for the rule of law, but also raises serious due process concerns. See

Gardner v. Florida, 430 U.S. 349, 362, 97 S. Ct. 1197, 1207 (1977) (plurality

opinion) (concluding that the due process clause was violated when “the death

sentence was imposed, at least in part, on the basis of information which he had

no opportunity to deny or explain”).

In sum, when placed on a balance sheet, the grave institutional harm caused

by the court’s approach significantly outweighs any benefit the approach might

yield.105 Resentencing defendants on appeal diminishes the role of the district

court in the eyes of the legal profession, and it diminishes the public’s confidence

in the district courts as an institution for administering criminal justice. It

103 That the Government’s brief cites evidence and advances arguments not presented to the district court in the first instance is of no moment. Defense counsel would assume that this court, adhering to its time-honored rule that matters not presented to the trial court will not be considered, Dupree v. Thomas, 946 F.2d 784, 793 (11th Cir. 1991), would refuse to entertain the evidence and arguments, and thus would not waste precious briefing space to respond. 104 The defendant would have the right to petition the court for rehearing, but a rehearing petition does not perform the same service a post-sentence objection would provide in the district court. 105 The only benefit that comes to mind is finality. In resentencing the defendant, we make his sentence final and bring his case to a close.

235 misallocates and gobbles up judicial resources.106 None of this is necessary.107 If

a sentence constitutes an abuse of discretion, we should simply say so and return

the case to the district court, the appropriate forum for the main event.

V.

For the foregoing reasons, I would vacate Irey’s sentence and remand to the

district court for resentencing.

106 The court acknowledges that we have reviewed hundreds of cases for substantive reasonableness since Booker was decided, but minimizes the impact of its decision by pointing out that the Eleventh Circuit has only reversed sentences in four of these cases. See ante at 61. After today’s decision, however, we may see more sentence appeals because any dissatisfied party can ask this court to resentence the defendant based on information favorable to its position that the district court presumably ignored by neglecting to mention the information in stating its reasons for the sentence. And with the precedent that we can consider evidence not in the record and make new arguments for or against a party on appeal, we may see more sentences vacated—or defendants resentenced. The court’s decision could affect many of the hundreds of sentencing appeals we will see in the years to come. 107 The court claims that if Irey’s sentence is reasonable, then any sentence is reasonable and that would return us to the pre-SRA days where a district judge was a “law unto himself or herself.” See ante at 137 (quotation omitted). These arguments do not justify the court’s approach of resentencing Irey. First, we can say that Irey’s sentence is unreasonable and set it aside under classic abuse of discretion review—we need not resentence Irey to solve the reasonableness concern. Second, we need not worry about a return to the pre-SRA days given the post-Booker requirements that district judges exercise their sentencing discretion only after conducting a formal process, applying statutory factors, and explaining their rationale—which is then subject to appellate review for abuse of discretion.

236 EDMONDSON, Circuit Judge, dissenting, in which BIRCH, BARKETT, and MARTIN, Circuit Judges, join:

The limit that the law places on the right use of appellate court power to

interfere with the sentencing decisions of United States District Judges (who, of

course, have -- under the law -- powers of their own) is, for me, what this appeal is

about. The specific case before us involves a serious crime and ghastly conduct --

“horrific” in the District Judge’s words -- on the part of Defendant. And, no party

has contended that the District Judge, in imposing the sentence, made a significant

procedural error.1 The government prosecutors (who bear the burden of showing

reversible error) contend that the sentence imposed in district court is too lenient

and that no sentence would be lawful except the maximum sentence of

imprisonment that the pertinent criminal statute will allow: 30 years.2

The issue is not whether federal appellate judges ought to do their duty.

They must. And the issue is not whether appellate courts can review sentences

and sometimes correctly set them aside, even when the sentence was imposed

1 Only a case without a substantial procedural error is in my mind as I write this dissent. 2 Because of the interplay of the Guidelines and the pertinent criminal statute, the Guidelines (which the District Judge recognized as a sentencing factor) called, in this case, for 30 years’ imprisonment. But the Guidelines are not mandatory as everyone knows. See, e.g., Nelson v. United States, 129 S. Ct. 890 (2009) (reversing Fourth Circuit and stressing that “Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable” by sentencing courts.); Spears v. United States, 129 S. Ct. 840 (2009) (reversing Eighth Circuit and upholding a below-Guidelines sentence in crack cocaine case based entirely on sentencing District Judge’s policy disagreement with Guidelines).

237 without procedural errors. They can. Appellate judges do have some legitimate

power to review the substance of sentences: that is, to determine whether a

District Judge has imposed a sentence that is either too lenient or too harsh as a

matter of law. The general question presented here is what is the limit, under the

law, on the power of appellate judges in deciding such reviews.

The legal limit on the power of appellate judges to interfere with sentences

imposed by District Judges is staked out by the standard of review. In Gall v.

United States, 552 U.S. 38, 128 S. Ct. 586 (2007), the Supreme Court -- in the

course of reversing an appellate court judgment that had overturned a district

court’s sentence as too light3 -- set the standard of review: we only look to see if

the sentence is reasonable in the light of a “deferential abuse-of-discretion

standard.” Id. at 40, 128 S. Ct. at 591.

This standard of review promotes (among other things) finality in criminal

cases. But the deferential abuse-of-discretion standard was selected mainly to

3 In reversing the District Judge’s far-below-the-Guidelines sentence, the Eighth Circuit in Gall had studied the record and opined that the District Judge in sentencing had given “too much weight” to X, “did not properly weigh” Y, given “too much emphasis” to Z, and so on. The Supreme Court said, “Although the Court of Appeals correctly stated that the appropriate standard of review was abuse of discretion, it engaged in an analysis that more closely resembled de novo review of the facts presented and determined that, in its view, the degree of variance [from the advisory guideline] was not warranted.” Gall, 552 U.S. at 56, 128 S. Ct. at 600. Although the Eighth Circuit vacated the sentence imposed by the district court and remanded for resentencing, the Eighth Circuit did not set a precise sentence to be imposed on Mr. Gall on remand.

238 recognize that the Sentencing Guidelines are advisory only and a District Judge

must not presume that the sentence indicated by the Sentencing Guidelines is a

reasonable sentence for the convicted person standing before the District Judge:

the District Judge must make for each convicted person “an individualized

assessment based on the facts presented.” Gall, 552 U.S. at 50, 128 S. Ct. at 597.

Thus, sentencing is a fact-bound determination. When the Supreme Court laid

down the law, the Court pointed out that a District Judge “is in a superior position

[relative to an appellate court] to find facts and judge their import under § 3553(a)

in the individual case. The judge sees and hears the evidence, makes credibility

determinations, has full knowledge of the facts and gains insights not conveyed by

the record.” Id. at 51, 128 S. Ct. at 597 (internal quotation omitted and emphasis

added).

In sentencing, a District Judge is to “impose a sentence sufficient, but not

greater than necessary, to comply with the purposes set forth in” 18 U.S.C. §

3553(a)(2). (emphasis added).4

4 The sentence imposed needs

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

239  In my view of the law, a District Judge’s decision on what sentence to

impose is essentially a fact finding, especially as here where witnesses testified at

the sentencing hearing: oral evidence particularly raises issues of credibility.

Consider Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401-02, 110 S. Ct.

2447, 2459 (1990) (discussing deferential standard of review for sanctions

imposed under Fed. R. Civ. P. 11 as one to review a fact-intensive question). And

“[w]hen an appellate court reviews a district court’s factual findings, the abuse-of-

discretion and clearly erroneous standards are indistinguishable: . . .” Id. at 401,

110 S. Ct. at 2458.

The clearly erroneous/deferential abuse-of-discretion standards deprive the

appellate court of the authority to reweigh conflicting evidence and to reconsider

facts already weighed and considered by a district court. See Cooter & Gell, 496

U.S. at 400-04, 110 S. Ct. at 2458-60; see also Inwood Labs., Inc. v. Ives Labs.,

Inc., 456 U.S. 844, 857-58, 102 S. Ct. 2182, 2190 (1982). As I grasp it, the

deferential abuse-of-discretion standard (while certainly no “any evidence” rule or

scintilla rule) calls for nothing more than some reasonable basis in the record for

the District Judge’s decision. Because the standard prohibits appellate judges

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

240 from making their own determination of where the weight of the evidence lies, the

law greatly restrains the maneuvering room of appellate courts. The restraint

flows directly from the deferential abuse-of-discretion standard of review chosen

for us by the Supreme Court. I submit that an appellate court’s reweighing of the

evidence or giving the facts a different construction -- to grant something in the

record more or less value than the District Judge did and so to conclude that the

record overall weighs more heavily for a higher sentence -- smacks of a kind of de

novo review à la the Eighth Circuit’s approach in Gall: the appellate court

oversteps its authority.

Appellate courts can set aside a sentence as too lenient to be reasonable as a

matter of law. But appellate courts first need to ask only one question: could an

objectively reasonable District Judge looking at the record “on the whole” have

found the ultimate sentence imposed to be a “sufficient” one, when the record

(including all the evidence and reasonable inferences and credibility evaluations)

is viewed in the light most favorable to the sentence. If the answer is “Yes,” the

appellate courts can correctly do nothing but affirm the sentence. This deferential

standard limits severely the authority of appellate judges to interfere with

sentences, even when the appellate judges -- giving more or less weight to one

circumstance or another -- think the sentence, in an immediate case, is not “just”

241 or not the most “just.”

On the other hand, this standard of review -- because it demands some

objective, reasonable basis in the record -- guards against true arbitrariness and

stops short of allowing District Judges the freedom to sentence simply as they

please. The deferential abuse-of-discretion standard of review acknowledges that

sentencing is about marshaling the facts and applying the fact-dependent legal

criteria set out by 18 U.S.C. § 3553(a). The pertinent standard places the main

responsibility and legal power for sentencing squarely on United States District

Judges whose business is fact finding; this standard very greatly restricts the

authority of appellate judges to interfere, although the appellate judges would

have definitely imposed some other sentence. “[I]t is not for the Court of Appeals

to decide de novo whether . . . the sentence [is] reasonable.” Gall, 552 U.S. at 59,

128 S. Ct. at 602. “The fact that the appellate court might reasonably have

concluded that a different sentence was appropriate is insufficient to justify

reversal of the district court.” Id. at 51, 128 S. Ct. at 597.

Turning to the facts of the particular case before us, I conclude that the

experienced District Judge did not abuse his discretion in deciding that 17.5 years

of imprisonment plus a lifetime of supervised release was a sufficient sentence

given all the circumstances. That this serious crime deserves a substantial term of

242 imprisonment is beyond debate (and, in reality, has never been debated). I trust

that most American judges (I hope all of them) would accept that 17.5 years of

imprisonment is a substantial term of imprisonment.5 And it is years beyond the

statutory minimum sentence for the only crime with which Defendant was

charged.6

The government says that nothing but 30 years of imprisonment would be a

lawful sentence in the circumstances of this case. I cannot agree with that legal

conclusion. First, I think the argument belittles the punishment involved in a

lifetime of supervised release that follows a substantial term of imprisonment.

The Supreme Court, in Gall, made it plain to me that supervised-release

punishments count -- under the law -- as real punishments and must not be treated

by appellate courts as nothing or, at least, nothing significant when sentences are

being reviewed. See id. at 48-49, 128 S. Ct. at 595-96. Second, the record in this

particular case contains many things that, I accept, would allow (that is, provide

5 Defendant might actually serve something less than 17.5 years because the Executive Branch, over the years, “may” award him some limited credit toward service of his sentence if the prison administrators determine Defendant has “displayed exemplary compliance with institutional disciplinary regulations.” See 18 U.S.C. § 3624(b)(1). How much credit Defendant will actually be awarded in the uncertain future is highly speculative. For review purposes, it seems best to me to treat a sentence imposed by a district court -- in this case, 17.5 years plus a lifetime of supervised release -- as a fixed sentence. I believe this approach has been our custom. 6 The government only charged Defendant with one count of production of child pornography per 18 U.S.C. § 2251(c). Other cases involving longer sentences in child pornography cases involved either prior criminal convictions or more counts or both.

243 an adequate evidentiary/factual basis for) an objectively reasonable judge to back

off the absolute thirty-years-imprisonment maximum sentence.

It is undisputed that Defendant surrendered after being indicted, plead

guilty, and expressed remorse. He accepted responsibility and relieved the

Government of the trouble and expense of a trial.7 After surrendering and posting

bond, he entered into a residential treatment center: a step toward rehabilitation. It

is also undisputed that Defendant has no prior criminal convictions. Furthermore,

Defendant did not obstruct justice and, to the contrary, cooperated with the

government providing information about the nature of his offense (time, places,

identity of others with whom he dealt and so forth). These kinds of things have

traditionally and commonly been reflected in a lessening of a sentence from what

it would have otherwise been. In the context of the full record, these things

provide a reasonable basis for the sentence in this case to be less than the

maximum allowed by the statute.

Moreover, at the sentencing hearing in district court, the Defendant stood

7 Contrast United States v. Kapordelis, 569 F.3d 1291 (11th Cir. 2009), where defendant - - a medical doctor charged, among other things, with producing pornographic images of underage boys (including one underage boy who was his near relative and another underage boy who had been the doctor’s patient: defendant had seemingly drugged the boys first) -- insisted (despite powerful photographic evidence against him) on a trial by jury and, at his sentencing, never accepted responsibility, and called prosecutors “liars” and compared them to Hitler; and the district court found the defendant would not likely be rehabilitated given “his attitude and lack of remorse.”

244 before and spoke to the judge who would impose the sentence upon him; and

Defendant presented witnesses on his behalf: this case is an oral-evidence case.

The government presented no witnesses. Several friends and family members

testified to Defendant’s characteristics generally and history of good works as an

employer, parent, and so on and to their own loyalty and support of Defendant, as

a human being who was in disgrace and in trouble. I appreciate that this kind of

humanizing testimony raises a familiar debate about whether it is possible for

character to be compartmentalized so that a person who is weak (or wicked) in

one way can really be strong (or good) in some other ways or whether character

must be viewed holistically so that a person’s weak or wicked character in one

context produces a reliable conclusion in every context. This familiar debate has

been taken up by Aristotle and Kant and other Greats. And I doubt the power of a

Court of Appeals to resolve it as a matter of law. Whatever I personally might

think about this family-and-friend evidence, the District Judge in this case had the

legal right to determine the credibility of the witnesses before him and to give the

testimony the weight that he did.8 Given the entire record, this evidence was

reasonable evidence to support a sentence less than the maximum sentence

8 I think it was Robert Frost who said that “there are tones of voice that mean more than words.” A District Judge hears those tones. Furthermore, a District Judge sees the witness’s demeanor as well as hears the testimony. I submit these opportunities are big advantages when it comes to fact finding.

245 allowed by the pertinent statute.

In addition, at the sentencing hearing, Defendant presented an expert

witness: Dr. Shaw. The government did not; and the government did not object to

the expertise of the Defendant’s expert witness. The expert never suggested (nor

has anyone else) that Defendant was not guilty on account of some mental

disorder. But the mental health expert did testify that this Defendant was afflicted

with a recognized mental disorder: heterosexual pedophilia. The expert testified

that this disorder was not something that Defendant had chosen to have, but was

something that was “within” Defendant (something “natural biological”) and

caused Defendant to have a tendency toward being attracted to sexual behavior

with prepubescent children. (This evidence, I submit, supports the District

Judge’s reference to Defendant as a “victim”: in the sense of a victim of the

circumstance of Defendant’s own biology.) The expert also testified that the

disorder was treatable, that this Defendant was amenable for treatment, that

Defendant’s aging9 -- a reduction naturally in testosterone and a reduction

9 Defendant was 50 at the time of sentencing. According to the Census Bureau, a white male of 50 would typically have a life expectancy of less than 30 years. See U.S. Census Dep’t., 2010 Statistical Abstract, Table 103 (available at http://www.census.gov/compendia/statab/2010/tables/10s0103.pdf). A 30-year maximum sentence then had a realistic likelihood of being, in fact, life imprisonment for this Defendant. Congress, in 18 U.S.C. § 2251(c) -- the statute of Defendant’s conviction -- does not call for life imprisonment as a statutory punishment. (Taking into account life’s uncertainty, I understand that any term of imprisonment might turn out to be actually life imprisonment; but, in reality, some sentences of years are, for some defendants, more likely to be life sentences than other

246 naturally in sex drive -- would likely be helpful to his treatment, and that

Defendant was not likely to be a recidivist. The District Judge who saw and heard

this expert witness could credit the evidence. Given the entire record, this

evidence is reasonable evidence to support a sentence of less than the maximum

allowed by the statute.

Of course, a number of elements make up the total record. Still, while I

accept that other facts and evidence (some of it conflicting) are in the record, I

think what I have summarized is legally enough to justify -- I do not say compel --

an objectively reasonable judge to find that a sentence of less than the 30 years of

imprisonment would be sufficient.

However I might have judged the weight of the evidence and facts in my

own reckoning of the best sentence, I accept that the record as a whole was

sufficient to allow -- as a matter of law -- the imposition of something less than

the maximum sentence. Imponderables are involved, and a District Judge has

unique access to and familiarity with the individual defendant. Here, the

sentences for other defendants. This reality of human age seems all right to consider, although never would I contend that persons aged 50 or older are, as a matter of law, exempt from a 30- year term of imprisonment under the pertinent statute.) The District Judge thought that Defendant’s age was pertinent to sentencing, especially Defendant’s advanced age upon his release from imprisonment. I accept that the circumstance of Defendant’s age was a permissible, reasonable basis, in conjunction with everything else, for a sentencing court to impose a sentence of less than the maximum on this Defendant.

247 sentencing District Judge thought out and selected a sentence for this case that

involved a substantial period of imprisonment, including a period of years (not

hours, weeks or months, but years of imprisonment) above the statutory minimum.

Then, to follow the term of imprisonment, the sentencing judge imposed a lifetime

of supervised release with many special conditions10: a “substantial restriction of

freedom” as the Supreme Court put it in Gall. Gall, 552 U.S. at 48, 128 S. Ct. at

595.

The sentencing range under the one statute involved is not very wide: only

15 years from the minimum sentence (15 years) to the maximum sentence (30

years). Cf., e.g., 18 U.S.C. § 2422(b) (a sexual offense allowing for imprisonment

of ten years to life); 21 U.S.C. § 841(b)(1)(A) (a drug offense allowing for

imprisonment of ten years to life). So, the room for the exercise of sentencing

discretion is markedly controlled from the start by the statutory range set by

Congress; therefore, it seems to me that it is harder for a sentencing judge to go

far off the rails. This observation seems even clearer to me where, as here, the

District Judge did impose a lengthy sentence of imprisonment: not the maximum,

but neither did he impose the minimum sentence (or something that was merely

hours, weeks, months, or only one year beyond the minimum).

10 The list of conditions of supervised release was long and tailored for someone like Defendant.

248  I think the record would support a variety of lawful sentences, including

some sentences heavier than the one actually imposed. Nevertheless, the

government’s prosecutors have failed to demonstrate to me that there is no

legitimate basis for the district court’s actual sentencing decision. All things

considered and applying the deferential abuse-of-discretion standard, I cannot

conclude that the sentence imposed was beyond the outside borders of reasonable.

For more background, see United States v. Irey, 563 F.3d 1223 (11th Cir. 2009)

(vacated for rehearing en banc).

In the federal judicial system, I believe that the district courts have duties

and powers -- mainly about fact finding and about weighing in the balance some

facts against others -- that are theirs and not ours. I believe that one of the

important duties of appellate judges is to allow District Judges room to carry out

the duties of District Judges. I believe the deferential abuse-of-discretion standard

set out and applied in Gall was intended to buttress the district courts’ sentencing

powers and to limit the appellate courts’ powers to recast what is essentially a

factual issue into a question of law. Given these principles, I believe it is

jurisprudentially important to steer clear of de novo review, or something

resembling it, in an appeal about the substantive-reasonableness of a sentence.

Considering this record and all, I would defer to the District Judge’s decision and

249 affirm the sentence in today’s case.

I dissent with respect and not without regret.

250 BIRCH, Circuit Judge, dissenting:

The time-worn adage in jurisprudence that hard facts often lead to bad law

is certainly applicable to this case. I have little doubt that had I been the

sentencing judge I might well have fashioned a different and harsher sentence for

this defendant. But the decision at play here is the respective roles of the appellate

court and the sentencing court. Our appellate role is properly constrained by the

standard of review to which we are required to adhere. As Judge Edmondson

persuasively describes the application of that standard to the record, it compels an

affirmance of the sentencing court’s judgment in this case. Accordingly, I

respectfully dissent and join in the dissenting opinions of Judge Edmondson and

Judge Barkett.

251 BARKETT, Circuit Judge, dissenting, in which BIRCH and MARTIN, Circuit Judges, join:

I agree with just about everything in Judge Edmondson’s dissent. If there is

any point of departure, it is the addition (or clarification, in my view), that the

district judge must articulate the reasons for the sentence imposed based on the

evidence in the record. Because the record may support a number of reasonable

sentences, this articulation is necessary so that the appellate court can be satisfied

that the district judge actually considered how all of the § 3553 factors relate to

the defendant’s individual case.

I previously explained why it is important for district judge’s to give

reasons in my dissent in United States v. Docampo, 573 F.3d 1091 (11th Cir.

2009).

First, Congress explicitly mandated the articulation of reasons:

Congress requires the district court to “state in open court the reasons for its imposition of the particular sentence,” § 3553(c), and before doing so, the court must consider each of the factors delineated in § 3553(a) to arrive at the appropriate sentence.

Docampo, 573 F.3d at 1106. Second, not every case requires an elaborate

explanation:

What is “enough” or “adequate” depends upon the circumstances of the particular case at hand[] . . . . [L]ess may be required if a case is “simple” or “typical.” The

252  logical corollary of this conclusion, however, is that more is required when a judge is faced with an atypical case or the defendant argues that a departure from the Guidelines is warranted. ....

. . . Thus, while a mechanical discussion of each § 3553(a) factor may not be necessary in every case, a district court has a responsibility to analyze the relevant factors on the record. These would include a particular § 3553(a) factor raised by a defendant, or one clearly implicated by the specific facts of that case . . . .

Moreover, the sentencing judge should be able to articulate the rationale that justifies the actual number of months or years that make up a defendant’s sentence, whether that number is within or outside the Sentencing Guidelines. A reasonable sentence is one for which there is an explanation of how the particular length of the imposed sentence corresponds to the individual sentencing needs of the particular defendant. For example, how does a sentence of fifteen years, as opposed to a sentence of five or ten years, or twenty-two years for that matter, serve the needs of individual and general deterrence while also addressing the nature of the crime and the individual characteristics of the defendant in a given case? The number of years cannot be determined simply by an individual judge’s gut feeling. As a society that values due process, we must have some rationalization for every step of our judicial system. There should be a transparent, logical, and reasonable justification to support the amount of jail time prescribed for a particular defendant based on the § 3553 factors.

Id. at 1106-08, n.7.

Here, the district judge meticulously and conscientiously followed the

253 dictates of Congress. Indeed, I do not see what more the district judge could

reasonably have done to assure us that he considered and weighed all of the §

3553 factors as they applied to this case. The district judge considered every

piece of evidence in the extensive record before him, which is clearly sufficient to

permit meaningful appellate review. The problem, if there is one, is that, beyond

the offense itself, the government failed to present any evidence whatsoever to

rebut or challenge any of the defendant’s witnesses at sentencing. And, it was not

the district judge’s job, nor is it ours, to supply and rely on evidence that was not

presented.

The bottom line is that the majority—based on its own finding of facts and

credibility determinations—simply disagrees with the district judge’s conclusion

that seventeen years followed by a lifetime of supervised release is an appropriate

sentence for Irey. Notably, the majority really does not offer any explanation for

mandating that the district judge impose a sentence of thirty years of imprisonment

in lieu of Irey’s current substantial sentence.1 Because the majority is not

1 The majority cites to numerous published and unpublished cases involving various different offenses against minors in which the defendants therein received sentences in excess of thirty years to suggest that Irey’s sentence of seventeen and one-half years creates a “substantial disparity” that renders it unreasonable. Majority Op. at 130-134. Looking at only the length of the various sentences in the cited cases, Irey’s sentence arguably presents a disparity. However, Congress did not command sentencing courts to avoid mere “disparities” or even “substantial disparities.” What it did require is that sentencing courts consider the need to avoid unwarranted disparities among similarly situated defendants. See 18 U.S.C. § 3553(a)(6). Whether one defendant’s sentence creates an unwarranted disparity from other defendants necessarily requires

254 “reviewing” the district judge’s judgment but rather is substituting its own and is

assuming the role that the prosecutor failed to perform in presenting evidence that

could arguably support a longer sentence, I dissent.2

a sentencing court to undertake a fact-intensive inquiry in the first place to determine whether the defendants are similarly situated. See United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009) (“A well-founded claim of disparity, however, assumes that apples are being compared to apples.”) (citation omitted). I believe a court cannot truly assert that one defendant’s sentence creates an unwarranted disparity from another or several defendants’ without the benefit of the entirety of the sentencing records of all the defendants. However, even if this extremely fact-intensive analysis can be based on the information contained in appellate opinions alone, consideration of any potential unwarranted sentencing disparity is not a task for the appellate court to complete in the first instance as the majority does in this case.

Moreover, several of the majority’s cited cases contain facts that could just as legitimately support a finding that those defendants were not similarly situated to Irey and thus do not support the conclusion that the sentence imposed on Irey created an unwarranted disparity. For example, several of the cases concern defendants who, unlike Irey, proceeded to trial. We have previously held that defendants who plead guilty and assist the government are not similarly situated to those who proceed to trial. See e.g., Docampo, 573 F.3d at 1101 (holding that a defendant who proceeded to trial was not similarly situated to his co-conspirators who plead guilty and assisted the government and thus there was no unwarranted disparity between the defendant’s lengthy 270 month sentence and his co-conspirator’s substantially shorter sentences). 2 As I also noted in my dissent in Docampo:

Appellate courts have had no difficulty finding unreasonableness when asking [whether a sentence is enough punishment]. See, e.g.,[United States v.]Pugh, 515 F.3d [ ]1179 [(11th Cir. 2008)] (finding that probation for a possessor of some child pornography was insufficient). We should likewise be willing to find that, in a case that warrants it, “a within-Guidelines sentence is ‘greater than necessary’ to serve the objectives of sentencing,” Kimbrough [v. United States], [552 U.S. 85, 91], 128 S. Ct. [558], 564 (quoting § 3553(a)). Our appellate sentencing review should not develop into a one-way rachet upwards. Just as the district court has an obligation not to assume the Guidelines are automatically reasonable, we too—as a circuit that does not apply a reasonableness presumption—are obligated to ask whether a within-Guidelines sentence is reasonable without any thumb on the

255  scale. Thus, reiterating what we have previously noted, there are “many instances where the Guidelines range will not yield a reasonable sentence. . . . In some cases it may be appropriate to defer to the Guidelines; in others, not.” United States v. Hunt, 459 F.3d 1180, 1184 (11th Cir. 2006).

Docampo, 573 F.3d at 1110-11.

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