U.S. Department
of Justice
Rita v. United States - Brief (Merits)
No. 06-5754
In the Supreme Court of the United States
VICTOR A. RITA, PETITIONER
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES
PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
DAN HIMMELFARB
MATTHEW D. ROBERTS
Assistants to the Solicitor
General
NINA GOODMAN
JEFFREY P. SINGDAHLSEN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Was the district court's choice of within-Guidelines sentence reasonable?
2. In making that determination, is it consistent with United States v. Booker, 543 U.S. 220 (2005), to accord a pre sumption of reasonableness to within-Guidelines sentences?
3. If so, can that presumption justify a sentence imposed without an explicit analysis by the district court of the 18 U.S.C. 3553(a) factors and any other factors that might justify a lesser sentence?
In the Supreme Court of the United States
No. 06-5754
VICTOR A. RITA, PETITIONER
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES
OPINION BELOW
The opinion of the court of appeals (J.A. 112-113) is not published in the Federal Reporter but is reprinted in 177 Fed. Appx. 357.
JURISDICTION
The judgment of the court of appeals was entered on May 1, 2006. The petition for a writ of certiorari was filed on July 28, 2006, and was granted on November 3, 2006, limited to the questions specified by the Court. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The relevant constitutional and statutory provisions are reprinted in an appendix to this brief. App., infra, 1a-30a.
STATEMENT
Following a jury trial in the United States District Court for the Western District of North Carolina, petitioner was convicted on two counts of making false declarations before a grand jury, in violation of 18 U.S.C. 1623, two counts of mak ing false statements, in violation of 18 U.S.C. 1001, and one count of obstruction of justice, in violation of 18 U.S.C. 1503. He was sentenced to 33 months of imprisonment, to be fol lowed by three years of supervised release. The court of ap peals affirmed.
1. In 2003, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) investigated whether InterOrdnance of America (InterOrdnance), a licensed firearms dealer in Mon roe, North Carolina, had illegally imported machine-gun parts kits. The ATF determined that federal law classified certain items sold by InterOrdnance, including a parts kit that could be used to assemble a PPSH-41 submachine gun, as machine guns that could not be possessed legally without registration. In April 2003, ATF agents began a nationwide recall of the PPSH-41 parts kits, contacting customers who had purchased the kits from InterOrdnance and asking the customers to turn the kits over to the ATF. One of the customers reported that he had discussed the recall with an InterOrdnance employee, who had advised him not to turn the kit over to the ATF. J.A. 16-19, 21-22; Sealed J.A. 119; Supp. J.A. 1-2, 11, 13; see 26 U.S.C. 5841, 5845(a)(6) and (b), 5861.
Petitioner had purchased a PPSH-41 parts kit from InterOrdnance in January 2003. At the time, petitioner was an asylum officer with the Department of Homeland Security (DHS). ATF Agent Bonnie Levin subsequently contacted petitioner and informed him of the recall. During a telephone conversation on September 4, 2003, petitioner agreed that he would turn the kit over to the agent the following week. Sealed J.A. 119-120, 128-129; Supp. J.A. 5-8.
After speaking with Agent Levin, petitioner placed a call to InterOrdnance. Two days later, he mailed the PPSH-41 parts kit to the company. Petitioner did not attend the sched uled meeting with Agent Levin. Through his attorney, peti tioner subsequently turned over to the ATF a different parts kit that he had purchased from InterOrdnance, one that was not the subject of a recall. J.A. 23-24; Sealed J.A. 120; Supp. J.A. 2-5, 8-10, 13-14.
On October 27, 2003, petitioner testified before a federal grand jury in the Western District of North Carolina that was investigating InterOrdnance's sales of the PPSH-41 parts kits. Petitioner denied having had any telephone conversation with InterOrdnance before he returned the kit to the com pany. Petitioner also claimed that Agent Levin had not asked him to turn over the PPSH-41 parts kit to the ATF. J.A. 19; Sealed J.A. 120-121; Supp. J.A. 11-12.
2. Based on the two false statements before the grand jury, petitioner was charged in an indictment with two counts of perjury, two counts of making false statements, and one count of obstruction of justice. A jury found him guilty of all five charges. J.A. 7-13, 94, 103; Sealed J.A. 118.
3. After the verdict but before sentencing, see J.A. 2, this Court decided United States v. Booker, 543 U.S. 220 (2005). Booker held that the Sixth Amendment right to a jury trial is violated when a defendant's sentence is increased based on judicial factfinding under mandatory federal Sentencing Guidelines. Id. at 226-244. As a remedy for that constitu tional violation (id. at 244-268), the Court severed two provi sions of the Sentencing Reform Act of 1984 (SRA), 18 U.S.C. 3551 et seq. The first was 18 U.S.C. 3553(b)(1) (Supp. IV 2004), which had required courts to impose a Guidelines sen tence. "So modified, the [SRA] makes the Guidelines effec tively advisory. It requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sen tence in light of other statutory concerns as well." 543 U.S. at 245-246 (citations omitted). The Court also severed an appellate-review provision, 18 U.S.C. 3742(e) (2000 & Supp. IV 2004), which had served to reinforce the mandatory nature of the Guidelines. The Court replaced that provision with a general standard of review for "unreasonableness," under which courts of appeals determine "whether the sentence 'is unreasonable' with regard to [18 U.S.C.] § 3553(a)." 543 U.S. at 261.
Section 3553(a) requires courts to "impose a sentence suf ficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection." 18 U.S.C. 3553(a) (2000 & Supp. IV 2004). The purposes set forth in paragraph (2) are that the sentence imposed
(A) "reflect the seriousness of the offense," "promote respect for the law," and "provide just punishment for the offense";
(B) "afford adequate deterrence to criminal conduct";
(C) "protect the public from further crimes of the defen dant"; and
(D) "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). Section 3553(a) also provides that, "in determining the particular sentence to be imposed," courts "shall consider" seven factors:
(1) "the nature and circumstances of the offense and the history and characteristics of the defendant";
(2) "the need for the sentence imposed" to satisfy the pur poses set forth in paragraph (2);
(3) "the kinds of sentences available";
(4) "the kinds of sentence and the sentencing range estab lished for * * * the applicable category of offense com mitted by the applicable category of defendant as set forth in the guidelines * * * issued by the Sentencing Com mission";
(5) "any pertinent policy statement * * * issued by the Sentencing Commission";
(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."
18 U.S.C. 3553(a) (2000 & Supp. IV 2004).
4. a. Because petitioner's crimes involved obstructing the investigation of a criminal offense and perjury in respect to a criminal offense, the Presentence Investigation Report (PSR) calculated petitioner's Sentencing Guidelines offense level using the cross-references in the guidelines for obstruction of justice and perjury, Sections 2J1.2(c) and 2J1.3(c). The cross- references required application of the guideline for accesso ries after the fact, Section 2X3.1(a)(1), which provides for a base offense level six levels lower than the offense level for the underlying offense. The underlying offense in this case was InterOrdnance's importation of defense articles without authorization, in violation of 22 U.S.C. 2778(b)(2). Under the guideline applicable to that offense, Section 2M5.2(a)(1), the base offense level is 26. The PSR therefore determined that petitioner's base offense level was 20. Because there were no applicable upward or downward adjustments, petitioner's total offense level was also determined to be 20. Sealed J.A. 122-125.
In calculating petitioner's criminal history, the PSR noted that he had been convicted in 1986 of making false statements in connection with the purchase of firearms, in violation of 18 U.S.C. 922(a)(6), and had received a probationary sentence. The conduct that resulted in that conviction involved peti tioner's providing false addresses on 19 ATF-4473 forms when he purchased 27 firearms of various types. At the time, peti tioner was a criminal investigator with the Immigration and Naturalization Service (INS); the INS suspended him because of the conviction. The PSR determined that the 1986 conviction resulted in no criminal history points, apparently because, under Section 4A1.2(e) of the Guidelines, the convic tion was too old. Since petitioner had no other prior convic tions, the PSR determined that he was in criminal history category I. Sealed J.A. 125, 129.
The combination of offense level 20 and criminal history category I yielded an advisory Guidelines range of 33 to 41 months of imprisonment. Sealed J.A. 132.
Petitioner did not challenge the PSR's calculation of the Guidelines range. He did move for a downward departure, however, on three asserted grounds: (1) his prior military service (petitioner had been a member of the Marine Corps, Army, and Army Reserve, had served in the Vietnam War and Operation Desert Storm, and had received a number of med als and awards); (2) his medical condition (petitioner had sev eral health problems, including diabetes, an enlarged pros tate, a herniated disk, excess lipids in his blood, arthritis, sleep apnea, and skin rashes and infections he claimed were the result of exposure to Agent Orange); and (3) the possibil ity that his prior involvement in criminal cases as an employee of the INS and DHS would make him susceptible to abuse in prison. J.A. 40-47, 49-73; Sealed J.A. 127-129.
b. At sentencing, the district court held a lengthy collo quy with petitioner's counsel about his arguments for a below- Guidelines sentence and the evidence he submitted. J.A. 51- 73. The court also confirmed that petitioner sought "a depar ture from the guidelines or a sentence under [18 U.S.C.] 3553 that is lower than the guidelines" based on the three grounds described above. J.A. 64-65. The court suggested, however, that petitioner's military service would not entitle him to "special treatment" unless it was "extraordinary," J.A. 65; noted that "the federal prison system is equipped to handle people with diabetes and many other difficult situations," J.A. 71; and questioned the assistance petitioner had provided in criminal investigations, J.A. 57-58.
The prosecutor urged the district court to impose a sen tence within the Guidelines range. J.A. 74-77. He argued that a Guidelines sentence was warranted because petitioner had obstructed an important investigation into the unlawful im portation of machine guns, J.A. 74-75; because petitioner had previously been convicted of "lying on firearm permit applica tions," J.A. 76; because petitioner's "history as a law enforce ment officer" makes him particularly undeserving of a lenient sentence, J.A. 77; and because petitioner's conviction in this case might compromise criminal cases in which petitioner had been involved when he worked for the government, J.A. 76-77.
Petitioner gave a lengthy allocution. J.A. 78-86. He stated, repeatedly, that he had not provided false testimony to the grand jury, J.A. 80, 83, 85; that he was "innocent" of the crimes of which the jury had found him guilty, J.A. 81, 83, 84; and that Agent Levin had perjured herself at his trial, J.A. 79, 85. Petitioner also claimed that the prosecutor had "pur posely misled" the grand jury and trial jury, J.A. 85, and that petitioner was the "victim" of "a modern day version of the Inquisition," J.A. 80.
c. In announcing its sentence, the district court stated that it had "reviewed the sentencing guidelines with respect to the charges here," which it found to be "serious matters." J.A. 86. The court then stated that it was "unable to find that the sentencing guideline range * * * is an inappropriate guideline range" for the charges. J.A. 87. The court also stated that, "under [18 U.S.C.] 3553, certainly the public needs to be protected if [the charges are] true, and I must accept as true the jury verdict that [petitioner] violated the laws that he is accused of violating, all five of them." Ibid. The court imposed a sentence of 33 months of imprisonment, the bottom of the advisory Guidelines range. J.A. 87, 103-111.
5. Petitioner appealed. The "sole issue on appeal" was "whether the sentence imposed by the district court was rea sonable." J.A. 112. The court of appeals held that it was and therefore affirmed. J.A. 112-113.
The court of appeals explained that, after Booker, district courts are "no longer bound by the range prescribed by the sentencing guidelines" but are "still required to calculate and consider the guideline range," together with "the [other] fac tors set forth in 18 U.S.C. § 3553(a)." J.A. 112-113. Quoting one of its prior decisions, the court then stated that "a sen tence imposed within the properly calculated Guidelines range . . . is presumptively reasonable." J.A. 113 (quoting United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006)) (internal quotation marks omitted). The court concluded that the district court in this case had "prop erly calculated the guideline range," "appropriately treated the guidelines as advisory," and "sentenced [petitioner] only after considering the factors set forth in § 3553(a)." Ibid. On the basis of "these factors," and because the district court had "sentenced [petitioner] within the applicable guideline range and the statutory maximum," the court of appeals found that "[the] sentence of thirty-three months' imprisonment is rea sonable." Ibid.
SUMMARY OF ARGUMENT
I. A sentence within a properly calculated Guidelines range is entitled to a presumption of reasonableness on ap peal. That conclusion is fully consistent with United States v. Booker, 543 U.S. 220 (2005). In concluding that district court consideration of advisory Guidelines, with appellate review for unreasonableness, would promote uniformity in sentencing (the principal objective of the SRA), Booker's remedial hold ing emphasized the critical role that the Guidelines would continue to play in moving sentencing in the direction of greater uniformity. See 543 U.S. at 263-264. According a presumption of reasonableness to a sentence within the advi sory Guidelines range also reflects a recognition that a within- Guidelines sentence will ordinarily represent a reasonable application of the factors in 18 U.S.C. 3553(a) (2000 & Supp. IV 2004). That is so for several reasons. The Guidelines are written and revised by an expert agency, with an intent to integrate the Section 3553(a) factors and with input from Con gress and sentencing judges across the country. Moreover, a presumption of reasonableness for Guidelines sentences is the only practicable way to avoid unwarranted sentencing dispari ties, which is itself an enumerated concern under Section 3553(a). In addition, the imposition of a Guidelines sentence means that two actors occupying different positions in the system-the sentencing judge and the Sentencing Commis sion-have jointly determined that a Guidelines sentence is appropriate in that case. Presuming that a sentence within the Guidelines range is reasonable does not make the Guide lines effectively mandatory, in violation of Booker's Sixth Amendment holding. The presumption does not mean that a sentence outside the Guidelines range is presumptively un reasonable, let alone mandate additional factfinding by the judge to justify a non-Guidelines sentence.
II. The SRA requires a judge to state the reasons for the sentence imposed. 18 U.S.C. 3553(c) (2000 & Supp. IV 2004). When a district court imposes a sentence within the Guide lines range, and satisfies the requirement of Section 3553(c) by providing the general reasons for the sentence imposed, the court is not required to analyze explicitly the Section 3553(a) factors or all of the possible justifications for a lesser sentence. Because the imposition of a within-Guidelines sen tence reflects agreement with the Sentencing Commission's assessment of the Section 3553(a) factors as applied to the case before the court, Section 3553(c) requires "little explana tion" for a within-Guidelines sentence. E.g., United States v. Sam, 467 F.3d 857, 864 (5th Cir. 2006). Courts are not re quired to furnish "specific verbal formulations" to demon strate that the district court considered the Section 3553(a) factors. United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005). Nor is a court required to address every argument raised by a party for a sentence above or below the Guidelines range. Sentencing records generally confirm the presumption that the court has exercised its discretion after considering the arguments of the parties and the court's statutory duties. Rather than vacate such a sentence for a fuller explanation, a court should proceed to review its substantive reasonable ness.
III. Petitioner's sentence, which was at the bottom of the advisory Guidelines range, was reasonable. Because the dis trict court considered the factors in Section 3553(a) and pro vided a statement of reasons as required by Section 3553(c), the within-Guidelines sentence is entitled to a presumption of reasonableness. Petitioner cannot rebut that presumption. Petitioner relies on personal mitigating factors, but the judge was entitled to weigh the significant aggravating factors as well. As the district court found, petitioner's crimes were "serious," J.A. 86; petitioner committed a similar crime in the past, and committed both the past and the present crimes while employed as a federal immigration official; and he ex pressed no remorse at sentencing. Under these circum stances, petitioner cannot show that a sentence at the bottom of the Guidelines range is outside the range of reasonable ness.
ARGUMENT
I. A SENTENCE WITHIN A PROPERLY CALCULATED GUIDELINES RANGE IS ENTITLED TO A REBUTTABLE PRESUMPTION OF REASONABLENESS ON APPEAL
Since this Court's decision in United States v. Booker, 543 U.S. 220 (2005), seven courts of appeals have held that a sen tence within a properly calculated Guidelines range is pre sumptively reasonable on appellate review.1 That presump tion means that a within-Guidelines sentence is accorded sub stantial deference by the court of appeals. See, e.g., United States v. Rivera, 463 F.3d 598, 602 (7th Cir. 2006); United States v. Candia, 454 F.3d 468, 473 (5th Cir. 2006). But it does not mean that such a sentence is reasonable per se (i.e., the presumption is not a conclusive one). See, e.g., United States v. Boscarino, 437 F.3d 634, 637 (7th Cir. 2006), petition for cert. pending, No. 05-1379 (filed Apr. 27, 2006); United States v. Richardson, 437 F.3d 550, 554 n.2 (6th Cir. 2006). Even a within-Guidelines sentence must be vacated if the party challenging it can show that, under the facts and cir cumstances of the case, the sentence imposed was unreason able in light of the factors in 18 U.S.C. 3553(a) (2000 & Supp. IV 2004).2
Application of a presumption of reasonableness accords with Booker and with sound principles of appellate review.
A. Booker Makes Clear That The Guidelines Will Continue To Play A Critical Role In Sentencing
1. Booker held that the Sixth Amendment is violated when a defendant's sentence is increased based on judicial factfinding under mandatory Guidelines. 543 U.S. at 226-244. As a remedy for that violation, the Court excised 18 U.S.C. 3553(b)(1) (Supp. IV 2004), which made the Guidelines man- datory, and 18 U.S.C. 3742(e) (2000 & Supp. IV 2004), an appellate-review provision that reinforced the Guidelines' mandatory nature. 543 U.S. at 244-268. As a consequence of Booker's remedial holding, the Guidelines are now advisory and federal sentences are reviewable for unreasonableness. Booker's remedial holding rested on the conclusion that "Con gress would likely have preferred the excision of * * * the [SRA's] mandatory language[]" to any other remedy, id. at 249, largely because that excision is most consistent with "Congress' basic goal in passing the [SRA]," which was "to move the sentencing system in the direction of increased uni formity," id. at 253; accord id. at 250, 252, 255-256.
In concluding that an advisory Guidelines regime with appellate review for unreasonableness was most likely to fos ter uniformity in sentencing, the Court emphasized that the Guidelines, although advisory, would continue to play an im portant role. For example, responding to the argument that the reasonableness standard would lead to "excessive sentenc ing disparities," Booker, 543 U.S. at 263 (quoting id. at 311 (Scalia, J., dissenting in part)), the Court observed that the Sentencing Commission would "continue to collect and study appellate court decisionmaking," would "continue to modify its Guidelines in light of what it learns, thereby encouraging what it finds to be better sentencing practices," and would "thereby promote uniformity in the sentencing process." Ibid. Then, in explaining why "the [SRA] without its 'manda tory' provision and related language remains consistent with Congress' initial and basic sentencing intent," id. at 264, the Court said the following:
[T]he Sentencing Commission remains in place, writing Guidelines, collecting information about actual district court sentencing decisions, undertaking research, and revising the Guidelines accordingly. The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sen tencing. The courts of appeals review sentencing deci sions for unreasonableness. These features of the remain ing system, while not the system Congress enacted, none theless continue to move sentencing in Congress' pre ferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to indi vidualize sentences where necessary.
Id. at 264-265 (citations omitted).
A presumption that a sentence within the advisory Guide lines range is reasonable is obviously consistent with Booker's emphasis on the Guidelines' continuing importance. Indeed, given the Court's recognition of the Guidelines' critical role in avoiding unwarranted sentencing disparities and its state ment that appellate review would "tend to iron out sentencing differences," 543 U.S. at 263, it is entirely in keeping with Booker to presume that a sentence within the advisory Guide lines range is reasonable on appellate review.
2. The Court stated in Booker that the reasonableness standard of review applies "across the board." 543 U.S. at 263. Petitioner and a number of his amici contend that it vio lates that principle, and therefore conflicts with Booker, to apply a presumption of reasonableness to sentences within the Guidelines range but not to sentences outside it. Pet. Br. 6-7, 24-25; Families Against Mandatory Minimums (FAMM) Br. 23-24; Fed. Publ. & Cmty. Defenders (FPCD) Br. 15. That is not correct. When the Court said that the standard applies "across the board," Booker, 543 U.S. at 263, it meant only that all sentences are to be reviewed for reasonableness -not merely, as was the case when the Guidelines were man datory, sentences resulting from Guidelines "departures" and sentences in cases "where there was no applicable Guideline," id. at 262 (citing 18 U.S.C. 3742(e)(3) and 18 U.S.C. 3742(a)(4), (b)(4), and (e)(4)). That remains true whether or not appellate courts apply a presumption of reasonableness to within- Guidelines sentences. For all sentences, the standard of re view is the same: whether the sentence is reasonable in light of the factors in Section 3553(a). See Booker, 543 U.S. at 260- 265. The presumption merely recognizes that, when the Sen tencing Commission and the individual district court reach essentially the same conclusion, the resulting within-Guide lines sentence ordinarily satisfies that standard.
The Court also stated in Booker that it was "fair * * * to assume judicial familiarity with a 'reasonableness' standard," because the SRA had long required the application of such a standard in reviewing departures and sentences with no guideline. 543 U.S. at 262-263. In support of that proposition, the Court cited (id. at 262) six court of appeals decisions that had applied a "reasonableness" standard in reviewing sen tences imposed for a violation of probation or supervised release-sentences for which the Guidelines recommended non-binding sentencing ranges in a policy statement, see Sen tencing Guidelines § 7B1.4. Petitioner suggests that a pre sumption of reasonableness is inconsistent with Booker be cause the decisions cited by the Court "d[id] not afford * * * a presumption of reasonableness to sentences imposed within the recommended [Guidelines] range." Pet. Br. 26. But those decisions had no occasion to consider whether a within-Guide lines sentence should be presumed reasonable, because all the sentences imposed in those cases were outside the Guidelines range.3 Booker's citation of those cases therefore lends no support to the notion that the Court implicitly rejected a pre sumption of reasonableness for within-Guidelines sentences.
B. A Presumption Of Reasonableness For Guidelines Sen tences Recognizes That A Sentence Within The Guide lines Range Will Ordinarily Reflect A Reasonable Appli cation Of The Factors In 18 U.S.C. 3553(a)
According a presumption of reasonableness to within- Guidelines sentences is also consistent with Booker because it reflects a recognition that a sentence within the Guidelines range will, in all but the most unusual cases, be within the range of sentences that a district court, in the exercise of its discretion, could reasonably determine best satisfies the con siderations in 18 U.S.C. 3553(a) (2000 & Supp. IV 2004). As explained below, that is true for four related reasons: the Guidelines integrate the factors in Section 3553(a); they re flect the Sentencing Commission's extensive consideration of past practice and sound policy, including Congress's direc tions regarding appropriate sentences for certain crimes; they are a critical tool for achieving Congress's goal of sentencing uniformity; and, finally, a Guidelines sentence reflects a joint determination by the sentencing judge and the Sentencing Commission that a sentence within the Guidelines range com plies with the factors in Section 3553(a).
1. The Guidelines integrate the congressional sentenc ing objectives in 18 U.S.C. 3553(a)
Booker holds that "reasonableness" review requires appel late courts to determine "whether the sentence 'is unreason able' with regard to [18 U.S.C.] § 3553(a)." 543 U.S. at 261. It is appropriate to accord a presumption of reasonableness to a sentence within the advisory Guidelines range because, rather than being "something separate and apart from Con gress's objectives in § 3553(a)," the Guidelines "embody many of those objectives." United States v. Johnson, 445 F.3d 339, 343 (4th Cir. 2006) (Wilkinson, J.). Indeed, the Guidelines "are the only integration of the multiple factors" in Section 3553(a). United States v. Jiménez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006) (en banc) (Boudin, C.J.), cert. denied, No. 06-5727 (Jan. 8, 2007).
a. In the SRA, Congress provided detailed guidance to the Sentencing Commission about how to formulate the Guidelines. See Mistretta v. United States, 488 U.S. 361, 374- 377 (1989). Congress's charge to the Commission is "a virtual mirror image" of the factors sentencing courts are directed to consider in Section 3553(a). United States v. Shelton, 400 F.3d 1325, 1332 n.9 (11th Cir. 2005).
Congress specifically directed the Commission to formu late Guidelines that "assure the meeting of the purposes of sentencing as set forth in section 3553(a)(2)." 28 U.S.C. 991(b)(1)(A); see 28 U.S.C. 994(f) and (m). Congress also re quired that, in formulating the Guidelines, the Commission consider the appropriate role and weight, in light of Con gress's policy choices, of various factors relating to the nature and circumstances of the offense and the history and charac teristics of the defendant. See Mistretta, 488 U.S. at 375-376; compare 28 U.S.C. 994(c)-(d) (directing Commission to con sider "the circumstances under which the offense was commit ted" and to determine whether various characteristics of the offender "have any relevance to * * * an appropriate sen tence") with 18 U.S.C. 3553(a)(1) (requiring sentencing courts to consider "the nature and circumstances of the offense and the history and characteristics of the defendant"). And Con gress's command in 28 U.S.C. 991(b)(1)(B) that the Commis sion establish sentencing practices and policies that "avoid[] unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct" is virtually identical to the requirement of 18 U.S.C. 3553(a)(6) that sentencing courts consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar con duct."
Congress has also played a direct role in formulating the Guidelines. Guidelines issued by the Commission must be submitted to Congress and do not take effect for a period of 180 days, during which time Congress may "modif[y] or disap prove[]" the proposed guidelines. 28 U.S.C. 994(p). Even after Guidelines have taken effect, Congress can "revoke or amend" them "at any time." Mistretta, 488 U.S. at 393-394. Congress has in fact exercised that authority, and rejected proposed guidelines. See Act of Oct. 30, 1995, Pub. L. No. 104-38, § 1, 109 Stat. 334 (28 U.S.C. 994 note). Congress has also directed the Commission to review and, if appropriate, amend Guidelines, see 28 U.S.C. 994 note (Provisions for Re view, Promulgation, or Amendment of Federal Sentencing Guidelines), and has enacted Guidelines amendments itself, see PROTECT Act, Pub. L. No. 108-21, § 401(b), (g) and (i), 117 Stat. 668, 671 and 672.
Congress's role in actively influencing the Guidelines strongly suggests that they are consistent with the sentencing factors that Congress included in Section 3553(a). "It would be startling to discover that while Congress had created an expert agency, approved the agency's members, directed the agency to promulgate Guidelines, allowed those Guidelines to go into effect, and adjusted those Guidelines over a period of fifteen years, * * * the resulting Guidelines did not well serve the underlying congressional purposes [behind sentenc ing]." United States v. Cage, 451 F.3d 585, 593 (10th Cir. 2006) (quoting United States v. Wilson, 350 F. Supp. 2d 910, 915 (D. Utah 2005)).
b. Petitioner and several of his amici claim that, regard less of whether the Commission was directed to incorporate the Section 3553(a) factors in formulating the Guidelines, it did not in fact do so. That claim lacks merit.
To begin with, the Commission has not "disavow[ed] any adherence to the enumerated purposes of punishment" or "acknowledg[ed] that [it] was unable to reconcile [the] pur poses of sentencing or apply them directly in crafting the Guidelines," as petitioner contends. Br. 13; accord Nat'l Ass'n of Criminal Def. Lawyers (NACDL) Br. 14-15; N.Y. Council of Def. Lawyers Br. (NYCDL) Br. 16. Consistent with Con gress's directive, the Commission sought to "balance all the objectives of sentencing" described in 18 U.S.C. 3553(a)(2) in formulating the Guidelines. United States Sentencing Comm'n, Supplementary Report on the Initial Sentencing Guidelines and Policy Statements 16 (1987) (Supplementary Report on the Guidelines). The Commission began by analyz ing current sentencing practices. Id. at 16-17; see 28 U.S.C. 994(m) (requiring Commission, "as a starting point," to "as certain the average sentences imposed" in "particular catego ries of cases"). It recognized that its empirical approach would "help[] [to] resolve its philosophical dilemma" concern ing the purposes of sentencing by "looking to those distinc tions judges and legislators have in fact made over the course of time." Supplementary Report on the Guidelines 17. Those "established distinctions," the Commission explained, were ones that the community had concluded were important in achieving the purposes of criminal punishment. Ibid. The Commission's "pragmatic approach," therefore, did not "imply that philosophical issues were ignored." Ibid. Rather, the Commission attempted to formulate Guidelines that were "consistent with the differing philosophies" of sentencing represented in Section 3553(a). Ibid.4
Petitioner and his amici are also mistaken in their conten tion that the Commission could not have taken the Section 3553(a) factors into account in formulating the Guidelines because, whereas Section 3553(a)(1) requires sentencing courts to consider "the history and characteristics of the de fendant," the Guidelines, see, e.g., Sentencing Guidelines §§ 5H1.1 to 5H1.6, 5H1.11 to 5H1.12, prohibit or discourage departures based on certain characteristics of the defendant. Pet. Br. 13-14, 27; FAMM Br. 20; NACDL Br. 15-16; Nat'l Veterans Legal Servs. Program (NVLSP) Br. 4-13; NYCDL Br. 17-18. Consideration of the history and characteristics of the defendant entails a determination of what, if any, weight should be given to a particular circumstance; it does not re quire that positive weight be given to every circumstance. The Guidelines reflect the Commission's considered judgment that the purposes of sentencing in Section 3553(a)(2) are best achieved by giving little or no weight to offender characteris tics such as education and vocational skills, employment re cord, family ties and responsibilities, and community ties. See Sentencing Guidelines §§ 5H1.2, 5H1.5, 5H1.6. Congress it self was of the view that it is "general[ly] inappropriate[]" to consider those characteristics, 28 U.S.C. 994(e), because of the possible "inappropriate use of incarceration for those de fendants who lack education, employment, and stabilizing ties," S. Rep. No. 98-225, at 175 (1983). And Congress di rected the Commission to ensure that the Guidelines reflect that legislative judgment. 28 U.S.C. 994(e).
Petitioner's amici also err in contending that amendments to the Guidelines "ha[ve] not been accompanied by empirical data that tie the [amendments] to the purposes of sentenc ing." NACDL Br. 23; accord Miller Br. 16-18. As the Sen tencing Commission explains in its amicus brief, the use of sentencing data is reflected in the explanations accompanying many of the amendments to the Guidelines. United States Sentencing Comm'n (USSC) Br. 11 n.8 (citing examples).
Finally, in light of Congress's role in superintending the Guidelines, see p. 18, supra, it seems difficult to maintain that the Commission has systematically disregarded Congress's direction to consider the Section 3553(a) factors. To the con trary, experience suggests that Congress knows how to inter vene when it finds a proposed guideline wanting and that Con gress does not intervene frequently. Together those factors belie the suggestion that the Guidelines generally ignore Con gress's mandate.
c. Treating a within-Guidelines sentence as presump tively reasonable because the Guidelines incorporate the Sec tion 3553(a) factors does not mean, as petitioner suggests, that the Guidelines are a "substitute" for the other Section 3553(a) factors. Br. 10. As Booker makes clear, see 543 U.S. at 259-261, sentencing courts are required to consider all the factors in Section 3553(a), including, in light of the Guidelines' now-advisory status, many factors "that were specifically pro hibited by the guidelines," United States v. Long, 425 F.3d 482, 488 (7th Cir. 2005). Likewise, on appellate review, if the appellant can demonstrate that the Section 3553(a) factors as applied to the facts of the case are such that a within-Guide lines sentence is unreasonable, the sentence will be vacated.
Petitioner is also mistaken in contending that, because the Guidelines themselves are one of the factors that must be considered, 18 U.S.C. 3553(a)(4)-(5) (2000 & Supp. IV 2004), it would render the other considerations in Section 3553(a) "superfluous" to say that the Guidelines incorporate them. Pet. Br. 10; accord FAMM Br. 18-19. There is neither inher ent circularity nor incompleteness in the fact that Section 3553(a) refers to the Guidelines. That fact only underscores the reasonableness of using the Guidelines as a reference point. The Guidelines are generalities that reflect the rele vant Section 3553(a) factors and are designed to address typi cal defendants. The sentencing judge must consider the par ticular defendant's circumstances in light of the statutory factors. But it remains true that the Guidelines account for the most important sentencing factors that judges have his torically considered, strive to implement the multiple pur poses of sentencing, and incorporate years of fine-tuning based on significant research. As a consequence, the Guide lines ranges ordinarily provide a reliable index of the applica tion of the Section 3553(a) factors.
2. The Guidelines reflect the considered judgment of an expert agency, Congress, and sentencing judges across the country
The Guidelines do not merely incorporate the factors in Section 3553(a); they are "the expert attempt of an experi enced body to weigh those factors in a variety of situations." United States v. Terrell, 445 F.3d 1261, 1265 (10th Cir. 2006). As explained in detail in the Commission's brief (at 6-13), the Commission's evaluation of the Section 3553(a) factors is based on nearly two decades of "close attention to federal sentencing policy," Johnson, 445 F.3d at 342, and "careful consideration of the proper sentence for federal offenses," United States v. Mykytiuk, 415 F.3d 606, 607 (7th Cir. 2005), taking into account "the aggregate sentencing experiences of individual judges" across the country and "the input of Con gress" on what sentences and factors promote the SRA's ob jectives, United States v. Buchanan, 449 F.3d 731, 736 (6th Cir. 2006) (Sutton, J., concurring), petition for cert. pending, No. 06-6155 (filed Aug. 24, 2006). In formulating the Guide lines, the Commission "analyzed and considered detailed data drawn from more than 10,000 presentence investigations," as well as "less detailed data on nearly 100,000 federal convic tions during a two-year period." Supplementary Report on the Guidelines 16. As this Court noted in Booker, moreover, the Commission has continued to "collect[] information about actual district court sentencing decisions," to "collect and study appellate court decisionmaking," to "undertak[e] re search," and to "revis[e]" and "modify" the Guidelines "in light of what it learns." 543 U.S. at 263-264. Indeed, "Con gress necessarily contemplated that the Commission would periodically review the work of the courts" and make "revi sions to the Guidelines." Braxton v. United States, 500 U.S. 344, 348 (1991). "It would be an oddity, to say the least, if a sentence imposed pursuant to this congressionally sanctioned and periodically superintended process w[ere] not presump tively reasonable," Johnson, 445 F.3d at 342-i.e., if it were not a "generally * * * accurate application of the factors listed in § 3553(a)," Terrell, 445 F.3d at 1265.
Petitioner contends that the Guidelines "have developed largely in response to political concerns," not empirical ones, and that Guidelines ranges have therefore moved in only one direction: upward. Pet. Br. 41. It is not obvious that this observation-were it accurate-would demonstrate a devia tion from the Section 3553(a) factors or Congress's underlying intent. In any event, petitioner's contention ignores the fact that a number of Guidelines amendments, including several with broad application, have had the effect of lowering Guide lines ranges. See Sentencing Guidelines § 1B1.10(c) (listing 24 amendments resulting in lower Guidelines ranges that may apply retroactively to defendants already serving sentences). The drug-trafficking guideline, for example, has been amended by the Commission to reduce the upper limit of the Drug Quantity Table from offense level 42 to offense level 38, id. App. C, amend. 505 (Nov. 1, 1994); see id. § 2D1.1(c)(1); to authorize a two-level reduction in the offense level for defen dants who satisfy the "safety valve" criteria, id. App. C, amend. 515 (Nov. 1, 1995); see id. § 2D1.1(b)(9); and to reduce the base offense level for defendants who receive a mitigating-role adjustment, id. App. C, amend. 640 (Nov. 1, 2002); see id. § 2D1.1(a)(3). Any suggestion that it would be inappropriate to presume that Guidelines sentences are rea sonable because the Guidelines are too harsh is also under mined by the fact that, in all of the cases cited in Booker as exemplifying the type of reasonableness review the Court had in mind, 543 U.S. at 262, the courts of appeals approved the decision to impose a sentence above the advisory Guidelines range, ibid.; see note 3, supra.
3. A presumption of reasonableness helps to prevent unwarranted sentencing disparities
a. Before the passage of the SRA, Congress had "dele gated almost unfettered discretion to the sentencing judge" to sentence a defendant to any term of imprisonment that fell within a "customarily wide" statutory range. Mistretta, 488 U.S. at 364. Under that system,"[s]erious disparities in sen tences * * * were common," id. at 365, including disparities correlated with constitutionally suspect characteristics like race and sex. See, e.g., Ilene H. Nagel, Structuring Sentenc ing Discretion: The New Federal Sentencing Guidelines, 80 J. Crim. L. & Criminology 883, 883-887 & n.3, 895-897 & nn.73-74, 77 & 82 (1990). Congressional concern about the "shameful disparity in criminal sentences" was a principal reason for the enactment of the SRA. S. Rep. No. 98-225, at 65. In Booker, this Court noted repeatedly that Congress's main objective in enacting the SRA was to diminish sentenc ing disparities,5 and dissenting Justices made the same obser vation, see 543 U.S. at 292 (Stevens, J., dissenting in part) ("The elimination of sentencing disparity, which Congress determined was chiefly the result of a discretionary sentenc ing regime, was unquestionably Congress' principal aim."). Indeed, that concern is reflected in the text of Section 3553(a) itself. See 18 U.S.C. 3553(a)(6). A presumption that a sen tence within the advisory Guidelines range is reasonable on appeal fosters uniformity, thereby "mov[ing] sentencing in Congress' preferred direction," Booker, 543 U.S. at 264, with out restricting district courts' discretion to impose sentences outside the Guidelines range.
The Guidelines are the only numerical benchmarks in se lecting an appropriate sentence; the remaining Section 3553(a) factors have no quantitative values and permit a dis trict court to consider a wide array of facts. "[C]onstruct[ing] a reasonable sentence starting from scratch in every case" would therefore "defeat any chance at rough equality," which "remains a congressional objective." Jiménez-Beltre, 440 F.3d at 519. The only practicable way for sentencing courts to fulfill Congress's goal of increasing sentencing uniformity is to anchor their analysis to the Guidelines, which are "an indispensable tool in helping courts achieve [that] mandate." United States v. Hunt, 459 F.3d 1180, 1184 (11th Cir. 2006); see Booker, 543 U.S. at 263 (Sentencing Commission "pro mote[s] uniformity in the sentencing process"). And when a district court exercises its discretion to impose a sentence within the advisory Guidelines range, an appellate presump tion that the sentence is reasonable appropriately recognizes that sentences within the Guidelines range are more likely to further Congress's goal of avoiding unwarranted disparities than are sentences outside the range.
b. Petitioner acknowledges that "Congress sought to re duce sentencing disparity overall with passage of the [SRA]" (Br. 36 n.23) but contends that the goal of uniformity should be subordinated to other sentencing objectives. That conten tion lacks merit.
Petitioner argues that Congress placed primary emphasis on the purposes of sentencing in 18 U.S.C. 3553(a)(2), which "d[o] not include uniformity as a purpose worthy of consider ation by the sentencing judge." Br. 15. But Congress in tended its specification of the purposes of sentencing to help reduce the disparities that existed under the previous system, which had left "each judge * * * to apply his own notions of the purposes of sentencing." S. Rep. No. 98-225, at 38. In deed, considerations of undue disparity are inherent in at least some of the sentencing purposes specified in Section 3553(a)(2), because a system that permits significant disparity in sentences imposed on similarly situated offenders fails to "promote respect for the law" or "provide just punishment." 18 U.S.C. 3553(a)(2)(A); see S. Rep. No. 98-225, at 75-76. And 18 U.S.C. 3553(a)(6) explicitly requires that, in deciding what sentence best meets "the purposes * * * in paragraph (2)," courts consider "the need to avoid unwarranted sentence dis parities among defendants with similar records who have been found guilty of similar conduct." Avoiding unwarranted disparities is thus complementary, not subordinate, to the purposes of sentencing in Section 3553(a)(2).
Petitioner also argues (Br. 12-18) that federal sentencing must be guided above all by the so-called "parsimony" provi sion of Section 3553(a), which directs courts to impose a sen tence "sufficient, but not greater than necessary," to comply with the purposes in Section 3553(a)(2). As Chief Judge Boudin has explained, however, that provision is not "an ad monition to be lenient." United States v. Navedo-Concepción, 450 F.3d 54, 58 (1st Cir. 2006). It merely requires courts to impose a sentence that is consistent with the broad purposes in Section 3553(a)(2), most of which "hardly connote less pun ishment." Ibid.
The history of the provision confirms that point. The "sufficient, but not greater than necessary" language was a last-minute amendment to the Senate bill (S. 1762, 97th Cong., 2d Sess. (1984)), which had been made part of a contin uing appropriations resolution in the House of Representa tives (H.J. Res. 648, 97th Cong., 2d Sess. (1984)). See 130 Cong. Rec. 29,870 (1984). Nothing suggests that the amend ment was intended to alter the bill in any fundamental way. On the contrary, as Senator Hatch, a sponsor of the bill, ob served, "[t]he language * * * is simply of a clarifying na ture. It does not change in any way the policy already con tained in the Senate-passed bill." Id. at 29,685. Instead, he explained, the language merely reinforces the requirement that sentences "be designed so that they fully meet the vari ous purposes of sentencing. Those purposes cannot be met by sentences that are plainly 'excessive' or by sentences that are plainly insufficient." Ibid. Consistent with the legislative history, courts of appeals since Booker have uniformly inter preted the parsimony provision merely as a directive that the sentence imposed be consistent with the general purposes of sentencing.6
c. Petitioner also contends that placing substantial weight on the Guidelines is not an appropriate means for sen tencing courts to avoid unwarranted disparities. That conten tion is likewise without merit.
i. Petitioner argues that, before adding the language that became 18 U.S.C. 3553(b)(1) (Supp. IV 2004) (and made the Guidelines mandatory), Congress expected that the Guidelines range would be "merely one of several consider ations relevant to sentencing." Br. 16. He suggests that Booker's excision of that language therefore eliminated any basis for giving the Guidelines greater weight than any other factor in Section 3553(a). Br. 16-18. Contrary to petitioner's claim, and putting to one side the inherent difficulties in as certaining the evolution of Congress's intent, the SRA's his tory, purpose, and structure demonstrate that Congress in tended that substantial weight be given to the Guidelines even before it added the language that became Section 3553(b)(1).
That language first appeared in a floor amendment to S. 1437, 95th Cong., 1st Sess. (1977) (entitled "Criminal Code Reform Act of 1977"), a precursor to the SRA. See 124 Cong. Rec. 382-383 (1978). The amendment, which was not contro versial, received very limited debate, and was passed by voice vote. See ibid. It was clearly not intended as a radical change in the role or weight of the Guidelines. It was intended merely to make more explicit the existing understanding of the bill, as both Senator Hart, the sponsor of the amendment, and Senator Kennedy, the principal sponsor of the bill, made clear. See, e.g., id. at 383 (statement of Sen. Hart) ("all this amendment does is state the obvious effect of what the entire purpose of the bill is"); ibid. (statement of Sen. Kennedy) ("it makes clearer what was the basic understanding of the mem bers of the committee that support the legislation").
That Congress always intended the Guidelines to be given substantial weight in sentencing is confirmed by the Commit tee Report on S. 1437. Explaining the version of the bill that existed before the addition of what became Section 3553(b)(1), the Report said the following:
[The bill] requires that, if the sentence is outside the range set out in the sentencing guidelines, the court state the specific reason that the sentence imposed is outside the range. [This] requirement would essentially be a statement of why the court felt that the guidelines did not adequately take into account all the pertinent circum stances of the case at hand. If the sentencing court felt the case was an entirely typical one for the applicable guideline category, it would have no adequate justification for deviating from the recommended range. The need for consistency in sentences for similar offenders committing similar offenses should be sufficiently important to dis suade a judge from deviating from a clearly applicable guideline range simply because it would have promulgated a different range.
S. Rep. No. 95-605, at 892-893 (1977). The Report also ex pressed the Committee's "expect[ation]" that "most sentences will fall within the ranges recommended in the sentencing guidelines." Id. at 1056.
That Congress intended the Guidelines to be given sub stantial weight even before the addition of what became Sec tion 3553(b)(1) is confirmed by two additional facts. First, one of the primary purposes of the legislation was to create a Sentencing Commission and Sentencing Guidelines. It is un likely that Congress would have invested resources in estab lishing the Commission and the Guidelines if the Guidelines were to have no greater weight than the other factors in what became Section 3553(a). Second, one of the key structural aspects of the legislation was the establishment of limited judicial review of sentences and a related requirement that district courts explain the basis for sentencing defendants outside the Guidelines range. Those provisions were present in early bills, before the addition of what became Section 3553(b)(1), and operated to reinforce the role and weight of the Guidelines under what became Section 3553(a)(4) and (5). See, e.g., S. Rep. No. 95-605, at 883 ("The [bill] encourages adherence to the guidelines by requiring that all sentences outside the guidelines be accompanied by a statement of rea sons justifying the deviation and by requiring that all such sentences be subject to appellate review.").
ii. Petitioner and a number of his amici also claim that the Guidelines as written have not succeeded in fostering uni formity in sentencing. They argue that defendants who should be treated similarly are often treated differently, prin cipally because of regional differences in the application of the Guidelines, differences in charging and plea-bargaining prac tices, differences in the Guidelines' treatment of crack cocaine and powder cocaine, and differences between the Guidelines' treatment of defendants who are classified as "career offend ers" and defendants who are not. Pet. Br. 35-37; Law Profes sors Who Study Sentencing Reform (LPWSSR) Br. 15-16; NACDL Br. 18-21; NYCDL Br. 19-22. As explained at greater length in the Sentencing Commission's brief (at 26- 30), petitioner's general claim is refuted by "[r]igorous statis tical study both inside and outside the Commission," which "confirm[s] that the guidelines have succeeded at the job they were principally designed to do: reduce unwarranted sen tencing disparity arising from differences among judges." United States Sentencing Comm'n, Fifteen Years of Guide lines Sentencing: An Assessment of How Well the Federal Criminal Justice System Is Achieving the Goals of Sentenc ing Reform 140 (2004) (Fifteen Years of Guidelines Sentenc ing). As explained below, petitioner's more specific argu ments are likewise without merit.
Studies have shown that "legally relevant differences among cases explain the vast majority of variation among * * * regions in sentence length." Fifteen Years of Guide lines Sentencing 101. And although it is true that disparities in sentencing may result from differences in charging and plea-bargaining practices, the Guidelines, as Booker recog nized, "try to move the system in the right direction, i.e., to ward greater sentencing uniformity," 543 U.S. at 256, by re quiring that sentences be based on "relevant conduct," not merely charged conduct, and by helping sentencing judges decide whether to reject a plea agreement that does not re flect all relevant conduct, Sentencing Guidelines § 1B1.3; id. Ch. 6, Pt. B. The Department of Justice has also taken steps to address disparities that may arise from charging and plea- bargaining decisions. See Memorandum from John Ashcroft, Attorney General, to All Federal Prosecutors (Sept. 22, 2003) <http://www.usdoj.gov/opa/pr/2003/September/03_ag_516. htm> (Department policy concerning charging criminal of fenses, disposition of charges, and sentencing).
As for the drug-trafficking guideline's crack-powder ratio and the career-offender provision, Sentencing Guidelines §§ 2D1.1(c) and 4B1.1, each reflects a congressional judgment about appropriate sentencing policy. The former reflects a "policy decision that crack offenders should be punished more severely" and a "choice as to how much more severe the pun ishment should be," United States v. Williams, 456 F.3d 1353, 1367 (11th Cir. 2006), petition for cert. pending, No. 06-7352 (filed Oct. 19, 2006); see 21 U.S.C. 841(b) (2000 & Supp. III 2003); the latter reflects a "policy [decision] that repeat drug offenders receive sentences 'at or near' the * * * statutory maximum[]," Williams, 456 F.3d at 1370; see 28 U.S.C. 994 (2000 & Supp. III 2003). Sentencing disparities that arise from congressional policy judgments are not "unwarranted."
Finally, even if the Guidelines have not fully achieved the sentencing uniformity that Congress intended, according judges unfettered discretion in sentencing could hardly be thought a means of reducing unwarranted disparities. On the contrary, studies have shown that, under the mandatory Guidelines system, "[w]hen disparity [wa]s found, it [wa]s more prevalent in cases receiving a departure than in cases sentenced within the guideline range." Fifteen Years of Guidelines Sentencing 118.
4. A Guidelines sentence reflects a joint determination by the sentencing judge and the Sentencing Commis sion that the sentence complies with the factors in 18 U.S.C. 3553(a)
As Booker emphasized, although the Guidelines are now advisory, district courts are still required to "consult th[e] Guidelines and take them into account when sentencing." 543 U.S. at 264; see 18 U.S.C. 3553(a)(4) and (5) (Supp. IV 2004). To "consult" the Guidelines, a district court must first cor rectly determine the advisory Guidelines range. See, e.g., United States v. Mix, 457 F.3d 906, 911 (9th Cir. 2006); United States v. Jointer, 457 F.3d 682, 686 (7th Cir. 2006), petition for cert. pending, No. 06-7600 (filed Oct. 27, 2006); United States v. Dixon, 449 F.3d 194, 204 (1st Cir. 2006). The court must then consider the other sentencing factors in Sec tion 3553(a) and determine, based on the facts and circum stances of the case, the appropriate sentence for the defen dant. See Booker, 543 U.S. at 245-246.
When a district court decides to impose a sentence within the Guidelines range, the court has determined that such a sentence complies with the factors in Section 3553(a). The sentencing judge's individualized agreement with the deter mination of the Sentencing Commission is significant. It means that two actors, occupying different positions in the sentencing system and approaching the question at different levels of generality, have jointly determined that a Guidelines sentence is appropriate-both in general, as applied to the "applicable category of offense committed by the applicable category of defendant," 18 U.S.C. 3553(a)(4)(A) (Supp. IV 2004), and in particular, as applied to the individual defendant in that case. The presumption of reasonableness "respects the alignment of the[se] views." Buchanan, 449 F.3d at 736 (Sutton, J., concurring).
Petitioner contends that this rationale "begs the ques- tion of whether the * * * within-Guidelines sentence was reasonable in light of the other factors * * * in § 3553(a)" and "produces only one result-affirmance." Pet. Br. 28. But the fact that the sentencing judge and the Sentencing Com mission have each determined that the Section 3553(a) factors warrant a sentence within the Guidelines range does not mean that the sentence imposed is per se reasonable and must be affirmed. It means only that the sentence should be pre sumed to be reasonable on appeal; the sentence will still be subject to vacatur if the party challenging it can demonstrate that it is substantively unreasonable in light of the Section 3553(a) factors as applied to the particular record.
C. According A Presumption Of Reasonableness To Within- Guidelines Sentences Does Not Make The Guidelines Effectively Mandatory
1. Booker's holding that the Sentencing Guidelines vio late the Sixth Amendment "rest[ed] on the premise" that the Guidelines were "mandatory and impose[d] binding require ments on all sentencing judges." 543 U.S. at 233; accord id. at 259. Applying a presumption of reasonableness to within- Guidelines sentences does not reinstitute a mandatory Guide lines regime, in contravention of Booker's Sixth Amendment holding. If a sentence within the Guidelines range is treated as presumptively reasonable, "it does not follow that a sen tence outside the guidelines range [will be] unreasonable." United States v. Myers, 439 F.3d 415, 417 (8th Cir. 2006). It does not even follow that such a sentence will be presumed unreasonable. On the contrary, "there is no presumption of unreasonableness that attaches to a sentence that varies from the [Guidelines] range." United States v. Jordan, 435 F.3d 693, 698 (7th Cir.) (emphasis omitted), cert. denied, 126 S. Ct. 2050 (2006); accord, e.g., United States v. Valtierra-Rojas, 468 F.3d 1235, 1238-1239 (10th Cir. 2006); United States v. Fore man, 436 F.3d 638, 644 (6th Cir. 2006). Even if that presump tion could be thought to "transform an 'effectively advisory' system * * * into an effectively mandatory one," United States v. Moreland, 437 F.3d 424, 433 (4th Cir.) (quoting Booker, 543 U.S. at 245), cert. denied, 126 S. Ct. 2054 (2006), a presumption that a within-Guidelines sentence is reasonable is fundamentally different, and has no such effect.
2. One of petitioner's amici essentially acknowledges that a presumption of reasonableness for within-Guidelines sen tences does not make the Guidelines mandatory. See NACDL Br. 7 n.3 ("It may well be that in theory a 'presumption of rea sonableness' for Guidelines sentences * * * does not raise * * * Sixth Amendment concerns if it does not * * * equate with a 'presumption of unreasonableness' for non- Guidelines sentences."). But petitioner himself contends oth erwise, Br. 6-7, 28-35, as do a number of his other amici, FPCD Br. 28; LPWSSR Br. 13; Miller Br. 10; NYCDL Br. 7- 9, 13-15. Their arguments lack merit.
a. Petitioner argues that presuming a within-Guidelines sentence to be reasonable "places an additional burden on the district court to justify [a] non-Guidelines sentence[]," by requiring "an additional explanation" why the factors consid ered by the court are "sufficient" to warrant a non-Guidelines sentence. Br. 33. Echoing that view, one of petitioner's amici argues that a presumption of reasonableness means that dis trict courts must follow the Guidelines unless "the defendant can prove that a guidelines sentence is inappropriate." NYCDL Br. 13. Another group of amici goes even further, suggesting that a presumption of reasonableness means that district courts cannot impose a non-Guidelines sentence un less there is a ground for a departure. Miller Br. 10.
Those assertions are simply wrong. As Chief Judge Easterbrook has explained, "[t]o say that a sentence within the [Guidelines] range presumptively is reasonable is not to say that district judges ought to impose sentences within the range." United States v. Gama-Gonzales, 469 F.3d 1109, 1110 (7th Cir. 2006) (emphasis omitted). "It is only to say that, if the district judge does use the Guidelines, then the sentence is unlikely to be problematic." Ibid.7
b. Noting that appellate courts almost always affirm within-Guidelines sentences when the defendant appeals and often vacate below-Guidelines sentences when the govern ment appeals (Br. 30-32), petitioner argues that those deci sions impose "a de facto restraint on [district] courts" (Br. 7) by deterring them from sentencing outside the Guidelines range. It would be astonishing to assume, however, that sen tencing courts will routinely abandon their obligation under Booker to treat the Guidelines as advisory and consider all the Section 3553(a) factors, and instead "return to the pre-Booker mandatory Guidelines," ibid., simply to minimize the rigor of appellate review. This Court has previously rejected "any presumption that a decision of this Court will 'deter' lower federal * * * courts from fully performing their sworn duty," Brecht v. Abrahamson, 507 U.S. 619, 636 (1993), and it should likewise reject any presumption that decisions of courts of appeals will lead district judges to "ignor[e] their oath," ibid., in order to increase their chances of being af firmed.
c. Petitioner nevertheless insists that a district judge who was "once, or twice, reversed for sentencing outside the Guidelines" would "reasonably conclude" that the law "all but require[d] him or her to impose a sentence within the Guide lines" range. Br. 30. That argument ignores the reality that -whatever the standard of review-the government does not reflexively appeal whenever there is a below-Guidelines sen tence. Between February 1, 2005 (the beginning of the first month after Booker was decided) and September 30, 2006 (the latest date for which preliminary data have been released), district courts imposed more than 14,000 below-Guidelines sentences that were not the result of a government-sponsored departure. App., infra, 31a. Yet the government appealed fewer than 300 of those sentences on the ground of unreason ableness, or approximately 2%. See also FPCD Br. App. A11- A17 (identifying 83 decisions on government appeals of below- Guidelines sentences between December 1, 2005, and Novem ber 30, 2006); NYCDL Br. App. 5a-6a (identifying 71 decisions on government appeals of below-Guidelines sentences be tween January 1, 2006, and November 16, 2006). Even if one indulges the assumption that district judges focus on the like lihood of an appeal being filed and the relative rigor of appel late review, a judge would conclude that a below-Guidelines sentence would not precipitate an appeal, let alone reversal.
Moreover, in the relatively few cases in which the govern ment has appealed a below-Guidelines sentence, if the sen tence is vacated, the court of appeals has not held that the district judge acted unreasonably in failing to impose a Guide lines sentence. In the vast majority of such cases, the basis for the decision is either that the sentence was too far below the Guidelines range or that the district court's explanation for the below-Guidelines sentence was inadequate. See, e.g., Cage, 451 F.3d at 596 (although facts of case might "justify some discrepancy from the advisory guidelines range," they were "not dramatic enough to warrant such an extreme down ward variance"); Myers, 439 F.3d at 419 (remanding for "im position of sentence following more explicit and thorough con sideration" of the Section 3553(a) factors, "without expressing any opinion on the reasonableness of the sentence that should be imposed").
d. Even if it were true, as petitioner contends, that the "consistent affirmance of within-Guidelines sentences" (Br. 30) encouraged district courts to sentence within the Guide lines range, that phenomenon could not be the result of the application of a presumption of reasonableness. As petitioner acknowledges, all the courts of appeals, whether they apply such a presumption or not, have affirmed almost all within- Guidelines sentences as reasonable. Br. 30-31; see note 2, supra. Indeed, petitioner and his amici identify only one court of appeals decision that vacated a within-Guidelines sentence on the ground that it was "substantively unreason able," Br. 31; see NYCDL Br. 5; NYCDL Br. App. 3a, 156a, and that decision was issued by a court-the Eighth Cir cuit-that applies the presumption. See United States v. Lazenby, 439 F.3d 928, 933-934 (2006). Rather than being a product of the presumption of reasonableness, the courts of appeals' "consistent affirmance of within-Guidelines sen tences" (Pet. Br. 30) reflects the sensible conclusion that a sentence within the Guidelines range will virtually always fall within the range of reasonableness.
Petitioner notes that district courts in circuits that apply a presumption of reasonableness "impose below-Guidelines sentences in one-third fewer cases than [district] courts in other circuits." Pet. Br. 32; see FPCD Br. 12-13; FPCD Br. App. A1. But that disparity cannot be attributed to the pre sumption either, because it existed long before Booker. In deed, the disparity has actually decreased since Booker. Dur ing the four fiscal years preceding this Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), district courts in the five circuits that have not adopted a presumption of rea sonableness imposed below-Guidelines sentences in 10.7% of cases, compared with 6.9% of cases in circuits that have. App., infra, 31a. Since Booker, district courts in non-pre sumption circuits have imposed below-Guidelines sentences in 14.5% of cases, compared with 10.8% of cases in presump tion circuits. Ibid. Thus, while district courts in non-pre sumption circuits have imposed below-Guidelines sentences at a rate about one third higher than the rate in presumption circuits since Booker, district courts in non-presumption cir cuits imposed below-Guidelines sentences at a rate about one half higher than the rate in presumption circuits before Booker. The higher rate of below-Guidelines sentences in the non-presumption circuits is traceable, not to their decision not to adopt a presumption of reasonableness for within-Guide lines sentences, but to the consistently high rate of below- Guidelines sentencing in the Second and Ninth Circuits, which together account for well over half the sentences in non-pre sumption jurisdictions. See ibid.
Nor do the data suggest that, in circuits that apply a pre sumption of reasonableness, more below-Guidelines sentences were imposed before the adoption of the presumption than after. On the contrary, data collected by the Sentencing Com mission indicate that the rate of below-Guidelines sentencing has remained remarkably stable since Booker, both in circuits that have adopted a presumption of reasonableness and in those that have not. See USSC Br. App. 2a-13a.
II. WHEN A DISTRICT COURT IMPOSES A SENTENCE WITHIN THE GUIDELINES RANGE AND COMPLIES WITH THE REQUIREMENT OF 18 U.S.C. 3553(c) TO STATE THE REASON FOR THE SENTENCE, THE COURT NEED NOT EXPLICITLY ANALYZE ALL OF THE SECTION 3553(a) FACTORS AND OTHER FACTORS THAT MIGHT JUSTIFY A LESSER SENTENCE
A. The SRA Requires Only A General Explanation For A Sentence Within The Guidelines Range
1. Section 3553(c) of Title 18 directs district courts to state, at the time of sentencing, the reasons for the sentence imposed. Although Section 3553(c) requires a statement of "the reasons for [the] imposition of the particular sentence" in all cases, 18 U.S.C. 3553(c) (2000 & Supp. IV 2004), it re quires a statement of "the specific reason for the imposition of [the] sentence" only when the sentence is outside the Guidelines range, 18 U.S.C. 3553(c)(2) (Supp. IV 2004) (em phasis added). The statute thus makes clear that a general statement of reasons is sufficient for within-Guidelines sen tences. Booker did not excise or otherwise alter Section 3553(c). See, e.g., United States v. Miqbel, 444 F.3d 1173, 1177 n.6 (9th Cir. 2006); United States v. Lewis, 424 F.3d 239, 244 (2d Cir. 2005); United States v. Hughes, 401 F.3d 540, 546 n.5 (4th Cir. 2005); see also Booker, 543 U.S. at 305 (Scalia, J., dissenting in part).8
When a district court imposes a sentence within the Guidelines range, no detailed statement is necessary to com ply with Section 3553(c)'s directive that the court provide general reasons for the sentence. The Guidelines generally reflect an accurate application of the Section 3553(a) factors, see Point I.B, supra, and a district court's imposition of a within-Guidelines sentence indicates that the court agreed with the Sentencing Commission's assessment of the statu tory factors as applied to the facts of the case. For that rea son, a Guidelines sentence requires "little explanation." E.g., United States v. Sam, 467 F.3d 857, 864 (5th Cir. 2006); United States v. Tyra, 454 F.3d 686, 688 (7th Cir. 2006).
2. Nor does the obligation imposed by Section 3553(a) to "consider" the factors listed there create any independent obligation to address those factors explicitly or provide a more specific statement of reasons for a within-Guidelines sentence. Although a district court may choose to discuss particular factors, "no specific verbal formulations" are neces sary to "demonstrate the adequate discharge of the duty to 'consider' matters relevant to sentencing." United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005) (Newman, J.).9 That is especially true when the district court chooses to sentence within the Guidelines range.
Indeed, in the absence of contrary indications in the re cord, a court of appeals may presume that the district court understood its obligations and adequately considered the Sec tion 3553(a) factors, since "[t]rial judges are presumed to know the law and to apply it in making their decisions," Walton v. Arizona, 497 U.S. 639, 653 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002). As long as "the [district] judge is aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable," and "nothing in the record indicates misunderstanding about such materials or misperception about their relevance," it is appropriate to conclude that "the requisite consideration [of the Section 3553(a) factors] has occurred." Fleming, 397 F.3d at 100. Accordingly, when a district court imposes a within-Guidelines sentence and com plies with Section 3553(c)'s requirement that it state "the reasons for its imposition of the particular sentence," the court is ordinarily not required to provide a further explana tion of its weighing of the Section 3553(a) factors to establish that they have been considered.
Contrary to petitioner's contention (Br. 42-43, 45-46), United States v. Taylor, 487 U.S. 326 (1988), does not support the view that district courts must articulate their consider ation of the Section 3553(a) factors on the record. In Taylor, the Court addressed the standard for reviewing a district court's dismissal of an indictment with prejudice under the Speedy Trial Act of 1974, 18 U.S.C. 3162(a). The Court held that, in light of the statute's text and legislative history, dis trict courts must articulate on the record how they evaluated the statutory factors in deciding whether to dismiss a case with or without prejudice. Taylor, 487 U.S. at 336-337, 342- 343. The SRA differs from the Speedy Trial Act, in that the SRA specifically directed the Sentencing Commission to for mulate Guidelines that "assure the meeting of the purposes of sentencing as set forth in section 3553(a)(2)," 28 U.S.C. 991(b)(1)(A), and a correctly calculated Guidelines range al ready "takes into account" the factors set forth in Section 3553(a), United States v. Scott, 426 F.3d 1324, 1330 (11th Cir. 2005). Because the Section 3553(a) factors are "built into the Guidelines," Johnson, 445 F.3d at 343, a district court that exercises its discretion to impose a sentence within the Guide lines range need not explicitly discuss those factors.
B. The District Court Need Not Explicitly Address Every Argument That Might Justify A Sentence Outside The Guidelines Range
Section 3553 of Title 18 requires a district court to impose a sentence "sufficient, but not greater than necessary," to comply with the purposes of sentencing in Section 3553(a)(2), 18 U.S.C. 3553(a) (2000 & Supp. IV 2004); to "consider," in determining an appropriate sentence, the factors listed in Section 3553(a), ibid.; and to "state in open court the reasons for its imposition of the particular sentence," 18 U.S.C. 3553(c) (2000 & Supp. IV 2004). But neither Section 3553 nor any other statute requires a district court to address every argument for a sentence higher or lower than the one im posed. Accordingly, if a district court decides to impose a sentence within the Guidelines range, and complies with the requirements of Section 3553, the court need not consider and reject every argument for a sentence outside the range. A number of courts of appeals have correctly so held. See, e.g., United States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006); United States v. Jones, 445 F.3d 865, 871 (6th Cir.), cert. denied, 127 S. Ct. 251 (2006); United States v. Fernan dez, 443 F.3d 19, 30 (2d Cir.) (Cabranes, J.), cert. denied, 127 S. Ct. 192 (2006).
Other courts of appeals, however, require district courts to address any ground for a non-Guidelines sentence that is not obviously without merit. See United States v. Sanchez- Juarez, 446 F.3d 1109, 1116-1118 (10th Cir. 2006); United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006); United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). The apparent justification for that requirement is that sentencing after Booker is discretionary and that a court of appeals "ha[s] to satisfy [itself], before [it] can conclude that the [dis trict] judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise." Cunningham, 429 F.3d at 679. That require ment, as a general rule, is unfounded. A general requirement that a district court must explicitly address every non-frivo lous argument for leniency lacks any basis in the sentencing statute.
In any event, even the courts that have imposed such a requirement recognize that district courts need not address every argument for a higher or lower sentence. As one of those courts has put it, "[a] sentencing judge has no more duty than * * * appellate judges do to discuss every argu ment made by a litigant; arguments clearly without merit can, and for the sake of judicial economy should, be passed over in silence." Cunningham, 429 F.3d at 678; accord Sanchez- Juarez, 446 F.3d at 1117; Cooper, 437 F.3d at 329. At least one of those courts has also recognized that "[a] response by the district court [i]s not required" when the party seeking a higher or lower sentence "perfunctorily raise[s] only run-of- the-mill contentions." United States v. Lopez-Flores, 444 F.3d 1218, 1223 (10th Cir. 2006), petition for cert. pending, No. 06-5217 (filed July 7, 2006). And even when a party makes an argument that those courts would require to be addressed, it can often be inferred from the record as a whole that the argument was considered and rejected, despite the absence of any explicit statement to that effect by the district court. See Jiménez-Beltre, 440 F.3d at 519 ("a court's reason ing can often be inferred by comparing what was argued by the parties or contained in the pre-sentence report with what the judge did").
Accordingly, as long as the record, viewed as a whole, does not indicate that the district court failed to give independent consideration to the Section 3553(a) factors, and as long as the district court provided a general statement of the reasons for the sentence as required by Section 3553(c), a sentence within the correctly calculated Guidelines range should not be set aside as procedurally unreasonable for failure to address ex plicitly particular arguments for a lesser sentence. Instead, the court of appeals should affirm unless the appellant can show that the facts and circumstances of the case are such that the Section 3553(a) factors required a sentence outside the Guidelines range.
III. PETITIONER'S SENTENCE, AT THE BOTTOM OF THE GUIDELINES RANGE, WAS REASONABLE
The district court sentenced petitioner to 33 months of imprisonment, the bottom of the advisory Guidelines range. Nothing in the record indicates that the court did not exercise its discretion on the basis of the Section 3553(a) factors, and the district court provided an adequate statement of reasons for the sentence under Section 3553(c). Petitioner's within- Guidelines sentence, moreover, is entitled to a presumption of reasonableness, and he cannot rebut the presumption. The sentence should therefore be affirmed.
A. The District Court Considered The Factors In 18 U.S.C. 3553(a)
There is no "record evidence suggesting" that the district court did not "faithfully discharge[] [its] duty to consider the statutory factors" in sentencing petitioner. Fernandez, 443 F.3d at 30. On the contrary, the record affirmatively shows that the district court considered the factors in Section 3553(a).
At the sentencing hearing, after ascertaining that peti tioner was not challenging the PSR's calculation of the Guide lines range, J.A. 49-50, the district court asked petitioner's counsel whether he was going to offer evidence to show that, "under 3553, your client would be entitled to a different sen tence than he should get under sentencing guidelines," J.A. 52, and it reminded counsel that "under 3553 you * * * have a right to show why your client should be considered for a sentence of less than he would get under the guidelines," J.A. 53. The court then heard from petitioner's counsel at length with respect to the considerations that, in petitioner's view, warranted a below-Guidelines sentence-namely, his military service, physical condition, and asserted vulnerability to abuse in prison. J.A. 51-73. During the course of those re marks, the court actively questioned counsel about his argu ments and closely examined the evidence he submitted.10 The court also confirmed the three grounds on which petitioner was relying for "a departure from the guidelines or a sentence under 3553 that is lower than the guidelines." J.A. 64-65. Thus, even without a presumption that a sentencing court has considered the Section 3553(a) factors, the record demon strates that that those factors were considered here. The dis trict court explicitly recognized its authority to impose a below-Guidelines sentence based on the factors in Section 3553(a), and gave petitioner a full and fair opportunity to identify any relevant considerations that would make a below- Guidelines sentence appropriate. The court then carefully considered the evidence and arguments that petitioner pre sented.
The record thus refutes petitioner's contention that the district court "considered only * * * the Guidelines range" (Br. 19) and "ignored" the other factors in Section 3553(a) (Br. 8). Petitioner's other contentions are mistaken as well.
First, petitioner contends that the district court did not give consideration to the Section 3553(a) factors other than the Guidelines range because the court was "compelled by circuit precedent to view * * * the Guidelines range as pre sumptively correct." Br. 20. The Fourth Circuit has not held, however, that a Guidelines sentence is presumptively correct in the district court, in the sense that a court must impose such a sentence unless the defendant (or the government) can "justify a sentence outside of the recommended Guidelines range." Ibid. It has only held that, if the district court chooses to impose a Guidelines sentence in the exercise of its discretion, the sentence is presumptively reasonable in the court of appeals. And the Fourth Circuit did not adopt even that presumption until eight months after the sentence in this case was imposed. See United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). There is thus no Fourth Circuit precedent to support petitioner's con tention that the district court believed itself bound to consider only the Guidelines.
Second, petitioner contends (Br. 3, 21-22 & n.11) that the district court did not properly consider even the Guidelines, because, according to petitioner, the court should not have used the accessory-after-the-fact guideline, Section 2X3.1, which resulted in a higher offense level. That challenge has been waived, however, because petitioner conceded in the district court that the Guidelines range was correctly calcu lated. J.A. 49-50. In any event, the contention lacks merit. The district court applied the accessory-after-the-fact guide line, not because it "found," without evidence, that petitioner "was an accessory after the fact" to InterOrdnance's crime, as petitioner contends, Br. 22 n.11, but because the perjury and obstruction-of-justice guidelines each direct the sentencing court to apply the accessory-after-the-fact guideline when the perjury or obstruction of justice involved a "criminal offense," Sentencing Guidelines §§ 2J1.2(c)(1), 2J1.3(c)(1), and the crimes of which petitioner was found guilty were committed in connection with a grand-jury investigation.
Nor did petitioner take the position in the district court that a below-Guidelines sentence was warranted because the accessory-after-the-fact guideline overstates the seriousness of his crimes. And the court's obligation to consider the Sec tion 3553(a) factors did not require it to "search for grounds not clearly raised on the record" that might support a sen tence outside the Guidelines range. United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006). In any event, the cross-refer ences to the accessory-after-the-fact guideline reflect the Sentencing Commission's reasonable view that perjury or obstruction of justice that involves a criminal offense should be punished more severely than perjury or obstruction of justice that does not, and that the severity of punishment should vary with the gravity of the underlying obstructed crime.
B. The District Court Adequately Explained Its Sentence
The district court also complied with its obligation to state "the reasons for the imposition of the particular sentence." 18 U.S.C. 3553(c) (2000 & Supp. IV 2004). During its colloquy with petitioner's counsel, the court questioned the nature and extent of the assistance petitioner had provided in other in vestigations. J.A. 57-58. It likewise questioned whether peti tioner had "performed such good and extraordinary service for our country that he is entitled to special treatment." J.A. 65. And the court observed that "the federal prison system is equipped to handle people with diabetes and many other diffi cult [medical conditions]." J.A. 71. Then, in announcing its sentence, the court stated that the crimes of which petitioner was convicted were "serious matters" and that, "under 3553, certainly the public needs to be protected." J.A. 86-87; see 18 U.S.C. 3553(a)(2) (requiring court to consider need for sen tence to "reflect the seriousness of the offense" and "protect the public"). Together with the court's comments in response to petitioner's arguments, those statements provided a suffi cient explanation of the court's conclusion that, in light of the seriousness of petitioner's crimes, and despite the mitigating circumstances that petitioner identified, a sentence within the Guidelines range was appropriate.
The court's statement of reasons surely could have been lengthier, or more detailed. But it did not have to be. The district court's decision to impose a Guidelines sentence nec essarily reflected its agreement with the Sentencing Commis sion's application of the Section 3553(a) factors to the case, and the sentence therefore required "little explanation." E.g., Sam, 467 F.3d at 864; Tyra, 454 F.3d at 688.
Petitioner contends that the statement of reasons was inadequate because the district court "did not resolve open evidentiary issues in the record, including the nature of Mr. Rita's medical conditions or his military and civil service." Br. 48. But there were no such issues to resolve, inasmuch as the facts supporting petitioner's arguments for a below-Guide lines sentence were undisputed. See, e.g., J.A. 73. The dis trict court must therefore be understood, not to have disre garded the facts proffered by petitioner, but to have con cluded that they did not warrant leniency.
C. Petitioner Cannot Rebut The Presumption That The Within-Guidelines Sentence Was Reasonable
The district court considered the factors in Section 3553(a) and provided an adequate statement of reasons under Section 3553(c), and its within-Guidelines sentence is entitled to a presumption of reasonableness on appeal. Petitioner cannot rebut that presumption.
As the prosecutor pointed out at sentencing, the essential "nature and circumstances of the offense" (18 U.S.C. 3553(a)(1)) is that petitioner obstructed an investigation into the unlawful importation of machine guns. J.A. 74-75. As the district court explicitly found, that is a "serious" crime. J.A. 86. As the prosecutor also pointed out at sentencing, "the history and characteristics of the defendant" (18 U.S.C. 3553(a)(1)), in addition to the characteristics identified by petitioner, are that he was previously convicted of "lying on firearm permit applications," J.A. 76, and committed both the present crimes and the prior crime while working as a federal immigration official, J.A. 76-77. Moreover, far from accepting responsibility for his crimes at sentencing, petitioner contin ued to insist that he was innocent, J.A. 80-85; accused the ATF agent of perjury and the prosecutor of intentionally mis leading the grand and petit juries, J.A. 79, 85; and claimed to be the "victim" of "a modern day * * * Inquisition," J.A. 80. Under these circumstances, a sentence at the low end of the advisory Guidelines range was not unreasonable.
Petitioner contends that his personal characteristics "clearly support a lesser sentence," Br. 21, but that conten tion is not nearly sufficient to rebut the presumption that a within-Guidelines sentence is reasonable. The fact that cer tain considerations "support" a lower sentence does not mean that they require one. Had the district court been persuaded by petitioner's arguments and imposed a lower sentence, its sentence might well have been reasonable. But the fact that, in the exercise of its discretion, the district court rejected peti tioner's arguments and imposed a higher sentence does not mean that its sentence was unreasonable. As Judge Posner has explained, "reasonableness is a range, not a point." Cun ningham, 429 F.3d at 679. For the reasons stated in Point I.B, supra, it would be a rare case in which the Guidelines range is not within the "broad range of reasonable[ness]," Fernandez, 443 F.3d at 34, and it would be a rarer case in which the bottom of the Guidelines range is not within that range. This is not such a case.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
DAN HIMMELFARB
MATTHEW D. ROBERTS
Assistants to the Solicitor
General
NINA GOODMAN
JEFFREY P. SINGDAHLSEN
Attorneys
JANUARY 2007
1 See United States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir.), cert. denied, 127 S. Ct. 691 (2006); United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006), petition for cert. pending, No. 06-5275 (filed July 11, 2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.), cert. denied, 126 S. Ct. 840 (2005); United States v. Kristl, 437 F.3d 1050, 1053-1054 (10th Cir. 2006).
2 Although four circuits have declined to adopt a presumption of reasonable ness for within-Guidelines sentences, those courts agree that a sentence within a properly calculated advisory Guidelines range will seldom be unreasonable. See United States v. Jiménez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006) (en banc) (Guidelines "continue * * * to be an important consideration * * * on appeal"), cert. denied, No. 06-5727 (Jan. 8, 2007); United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.) (Guidelines sentence will be reasonable "in the over whelming majority of cases"), cert. denied, 127 S. Ct. 192 (2006); United States v. Cooper, 437 F.3d 324, 331 (3d Cir. 2006) ("a within-guidelines range sentence is more likely to be reasonable than one that lies outside the advisory guidelines range"); United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (Guidelines sentence is "ordinarily" reasonable).
3 See United States v. White Face, 383 F.3d 733 (8th Cir. 2004) (for one defendant, Guidelines range was 3 to 9 months and sentence was 12 months; for two defendants, Guidelines range was 3 to 9 months and sentence was 24 months; for one defendant, Guidelines range was 5 to 11 months and sentence was 48 months; for one defendant, Guidelines range was 8 to 14 months and sentence was 18 months); United States v. Tsosie, 376 F.3d 1210 (10th Cir. 2004) (Guidelines range was 3 to 9 months and sentence was 18 months), cert. denied, 543 U.S. 1155 (2005); United States v. Salinas, 365 F.3d 582 (7th Cir. 2004) (Guidelines range was 3 to 9 months and sentence was 24 months); United States v. Cook, 291 F.3d 1297 (11th Cir. 2002) (per curiam) (Guidelines range was 5 to 11 months and sentence was 24 months); United States v. Olabanji, 268 F.3d 636 (9th Cir. 2001) (Guidelines range was 3 to 9 months and sentence was 12 months and one day); United States v. Ramirez-Rivera, 241 F.3d 37 (1st Cir. 2001) (Guidelines range was 3 to 9 months and sentence was 24 months).
4 A good example of the Commission's accommodation of the variety of purposes of sentencing is its adoption of the criminal history axis for the Sentencing Table. The Commission recognized that the SRA "sets forth four purposes of sentencing," and designed its criminal history categories to reflect all of them. Sentencing Guidelines Ch. 4, Pt. A, intro. comment. Thus, rather than focus on a defendant's potential for recidivism alone, "[t]he Sentencing Commission currently uses the criminal history measure as a tool to measure offender culpability, to deter criminal conduct, and to protect the public from further crimes of the defendant." United States Sentencing Comm'n, Mea suring Recidivism: The Criminal History Computation of the Federal Sen tencing Guidelines 1 (2004).
5 See, e.g., 543 U.S. at 250 ("Congress' basic statutory goal" was "a system that diminishes sentencing disparity."); id. at 252 ("[T]he sentencing statute's basic aim" was "ensuring similar sentences for those who have committed similar crimes in similar ways."); id. at 253 ("Congress' basic goal in passing the [SRA] was to move the sentencing system in the direction of increased uniformity."); id. at 255 ("Congress enacted the sentencing statutes in major part to achieve greater uniformity in sentencing."); id. at 256 ("Congress' basic statutory goal" was "uniformity in sentencing."); id. at 267 ("Congress' basic objective" was "promoting uniformity in sentencing.").
6 See United States v. Smith, No. 06-4358, 2006 WL 3823174, at *2 (4th Cir. Dec. 29, 2006) (parsimony provision does not require conclusion that sentence at bottom of Guidelines range is sufficient to satisfy purposes of Section 3553(a)); United States v. Dragon, 471 F.3d 501, 506 (3d Cir. 2006) (parsimony provision does not require district court to state that sentence imposed is minimum sentence necessary to satisfy purposes of Section 3553(a)); Navedo- Concepción, 450 F.3d at 57-58 (same).
7 Petitioner also argues that the presumption of reasonableness "unduly burdens" a party appealing a within-Guidelines sentence with "the nearly impossible task of proving a negative." Br. 33-34. But whether a Guidelines sentence is presumed reasonable or not, Booker's standard of review nec essarily requires an appellant to "prove a negative"-i.e., that the sentence imposed was not reasonable.
8 Section 3553(c) also requires that, when the Guidelines range exceeds 24 months, the district court give "the reason for imposing a sentence at a particular point within the range." 18 U.S.C. 3553(c)(1). Because petitioner's Guidelines range was 33 to 41 months, that provision does not apply here.
9 See, e.g., United States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir. 2006) (no requirement that court "explain on the record how the § 3553(a) factors justify the sentence"), petition for cert. pending, No. 06-5217 (filed July 7, 2006); United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006) (district court's consideration of Section 3553(a) factors "need not be evidenced explicitly"), petition for cert. pending, No. 06-5275 (filed July 11, 2006); United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) ("nothing in Booker or elsewhere requires the district court 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"); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005) (Posner, J.) ("checklist" not required).
10 See J.A. 56-62 (examining records relating to petitioner's testimony in other criminal cases and clarifying petitioner's claim that he "should be treated differently" because he might be "subject to retribution" in prison); J.A. 63-66 (questioning counsel about petitioner's military service); J.A. 66-73 (reviewing medical records and inquiring whether there was "medical evidence" indicating which of petitioner's symptoms were caused by exposure to Agent Orange).
APPENDIX
CONSTITUTION AND STATUTORY PROVISIONS INVOLVED
1. The Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
2. Section 3553 of Title 18 (2000 & Supp. IV 2004) pro vides:
Imposition of a sentence
(a) FACTORS TO BE CONSIDERED IN IMPOSING A SENTENCE.-The court shall impose a sentence suffi cient, 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 com mitted 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 amend ments made to such guidelines by act of Con gress (regardless of whether such amend ments 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 Com mission 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 incor porated 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 pur suant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regard less 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 sen tenced.1
(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.
(b) APPLICATION OF GUIDELINES IN IMPOSING A SENTENCE.-
(1) In General-Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists 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 that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applic able to similar offenses and offenders, and to the applic able policy statements of the Sentencing Commission.
(2) Child crimes and sexual offenses-
(A)2 Sentencing-In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless-
(i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into considera tion by the Sentencing Commission in for mulating the guidelines that should result in a sentence greater than that described;
(ii) the court finds that there exists a mitigating circumstance of a kind or to a degree, that-
(I) has been affirmatively and speci fically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued un der section 994(a) of title 28, taking ac count of any amendments to such sentenc ing guidelines or policy statements by Congress;
(II) has not been taken into consi deration by the Sentencing Commission in formulating the guidelines; and
(III) should result in a sentence dif ferent from that described; or
(iii) the court finds, on motion of the Gov ernment, that the defendant has provided substantial assistance in the investigation or prosecution of another person who has com mitted an offense and that this assistance established a mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence lower than that described.
In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission, together with any amendments thereto by act of Congress. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applic able to similar offenses and offenders, and to the appl icable policy statements of the Sentencing Commission, together with any amendments to such guidelines or policy statements by act of Congress.
(c) STATEMENT OF REASONS FOR IMPOSING A SEN TENCE.-The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence-
(1) is of the kind, and within the range, described in subsection (a)(4), and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range; or
(2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in the written order of judgment and com mitment, except to the extent that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32. In the event that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32 the court shall state that such statements were so received and that it relied upon the content of such statements.
If the court does not order restitution, or orders only partial restitution, the court shall include in the state ment the reason therefor. The court shall provide a transcription or other appropriate public record of the courts statement of reasons, together with the order of judgment and commitment, to the Probation System and to the Sentencing Commission,,3 and, if the sentence includes a term of imprisonment, to the Bureau of Prisons.
(d) PRESENTENCE PROCEDURE FOR AN ORDER OF NOTICE.-Prior to imposing an order of notice pursuant to section 3555, the court shall give notice to the defendant and the Government that it is considering imposing such an order. Upon motion of the defendant or the Government, or on its own motion, the court shall-
(1) permit the defendant and the Government to submit affidavits and written memoranda addressing matters relevant to the imposition of such an order;
(2) afford counsel an opportunity in open court to address orally the appropriateness of the imposition of such an order; and
(3) include in its statement of reasons pursuant to subsection (c) specific reasons underlying its determinations regarding the nature of such an order.
Upon motion of the defendant or the Government, or on its own motion, the court may in its discretion employ any additional procedures that it concludes will not unduly complicate or prolong the sentencing process.
(e) LIMITED AUTHORITY TO IMPOSE A SENTENCE BELOW A STATUTORY MINIMUM.-Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendants sub stantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guide lines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.
(f) LIMITATION ON APPLICABILITY OF STATUTORY MINIMUMS IN CERTAIN CASES.-Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pur suant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommen dation, that-
(1) the defendant does not have more than 1 criminal history point, as determined under the sen tencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dan gerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defen dant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the infor mation shall not preclude a determination by the court that the defendant has complied with this requirement.
3. Section 3742 of Title 18 (2000 & Supp. IV 2004) provides:
Review of a sentence
(a) Appeal by a Defendant.-A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence-
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect appli cation of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprison ment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range; or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
(b) APPEAL BY THE GOVERNMENT.-The Govern ment may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence-
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines;
(3) is less than the sentence specified in the ap plicable guideline range to the extent that the sen tence includes a lesser fine or term of imprisonment, probation, or supervised release than the minimum established in the guideline range, or includes a less limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the minimum established in the guideline range; or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
The Government may not further prosecute such appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General.
(c) PLEA AGREEMENTS.-In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules of Criminal Pro cedure-
(1) a defendant may not file a notice of appeal under paragraph (3) or (4) of subsection (a) unless the sentence imposed is greater than the sentence set forth in such agreement; and
(2) the Government may not file a notice of appeal under paragraph (3) or (4) of subsection (b) unless the sentence imposed is less than the sentence set forth in such agreement.
(d) RECORD ON REVIEW.-If a notice of appeal is filed in the district court pursuant to subsection (a) or (b), the clerk shall certify to the court of appeals-
(1) that portion of the record in the case that is designated as pertinent by either of the parties;
(2) the presentence report; and
(3) the information submitted during the sen tencing proceeding.
(e) CONSIDERATION.-Upon review of the record, the court of appeals shall determine whether the sen tence-
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines;
(3) is outside the applicable guideline range, and
(A) the district court failed to provide the written statement of reasons required by section 3553(c);
(B) the sentence departs from the applicable guideline range based on a factor that-
(i) does not advance the objectives set forth in section 3553(a)(2); or
(ii) is not authorized under section 3553(b); or
(iii) is not justified by the facts of the case; or
(C) the sentence departs to an unreasonable degree from the applicable guidelines range, having regard for the factors to be considered in imposing a sentence, as set forth in section 3553(a) of this title and the reasons for the im position of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or
(4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly un reasonable.
The court of appeals shall give due regard to the op portunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and, except with respect to determinations under subsection (3)(A) or (3)(B), shall give due deference to the district court's application of the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the district court's application of the guidelines to the facts.
(f) DECISION AND DISPOSITION.-If the court of appeals determines that-
(1) the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate;
(2) the sentence is outside the applicable guide line range and the district court failed to provide the required statement of reasons in the order of judg ment and commitment, or the departure is based on an impermissible factor, or is to an unreasonable degree, or the sentence was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable, it shall state specific reasons for its conclusions and-
(A) if it determines that the sentence is too high and the appeal has been filed under sub section (a), it shall set aside the sentence and remand the case for further sentencing proceed ings with such instructions as the court con siders appropriate, subject to subsection (g);
(B) if it determines that the sentence is too low and the appeal has been filed under sub section (b), it shall set aside the sentence and remand the case for further sentencing proceed ings with such instructions as the court con siders appropriate, subject to subsection (g);
(3) the sentence is not described in paragraph (1) or (2), it shall affirm the sentence.
(g) SENTENCING UPON REMAND.-A district court to which a case is remanded pursuant to subsection (f)(1) or (f)(2) shall resentence a defendant in accor dance with section 3553 and with such instructions as may have been given by the court of appeals, except that-
(1) In determining the range referred to in sub section 3553(a)(4), the court shall apply the guide lines issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, and that were in effect on the date of the previous sentencing of the defendant prior to the appeal, together with any amendments thereto by any act of Congress that was in effect on such date; and
(2) The court shall not impose a sentence outside the applicable guidelines range except upon a ground that-
(A) was specifically and affirmatively included in the written statement of reasons required by section 3553(c) in connection with the previous sentencing of the defendant prior to the appeal; and
(B) was held by the court of appeals, in re manding the case, to be a permissible ground of departure.
(h) APPLICATION TO A SENTENCE BY A MAGISTRATE JUDGE.-An appeal of an otherwise final sentence imposed by a United States magistrate judge may be taken to a judge of the district court, and this section shall apply (except for the requirement of approval by the Attorney General or the Solicitor General in the case of a Government appeal) as though the appeal were to a court of appeals from a sentence imposed by a district court.
(i) GUIDELINE NOT EXPRESSED AS A RANGE.-For the purpose of this section, the term "guideline range" includes a guideline range having the same upper and lower limits.
(j) DEFINITIONS.-For purposes of this section-
(1) a factor is a "permissible" ground of depar ture if it-
(A) advances the objectives set forth in section 3553(a)(2); and
(B) is authorized under section 3553(b); and
(C) is justified by the facts of the case; and
(2) a factor is an "impermissible" ground of de parture if it is not a permissible factor within the meaning of subsection (j)(1).
4. Section 991 of Title 28 (2000 & Supp. IV 2004) provides:
United States Sentencing Commission; establishment and purposes
(a) There is established as an independent com mission in the judicial branch of the United States a United States Sentencing Commission which shall consist of seven voting members and one nonvoting member. The President, after consultation with repre sentatives of judges, prosecuting attorneys, defense attorneys, law enforcement officials, senior citizens, victims of crime, and others interested in the criminal justice process, shall appoint the voting members of the Commission, by and with the advice and consent of the Senate, one of whom shall be appointed, by and with the advice and consent of the Senate, as the Chair and three of whom shall be designated by the President as Vice Chairs. Not more than 3 of the members shall be Federal judges selected after considering a list of six judges recommended to the President by the Judicial Conference of the United States. Not more than four of the members of the Commission shall be members of the same political party, and of the three Vice Chairs, no more than two shall be members of the same political party. The Attorney General, or the Attorney Generals designee, shall be an ex officio, nonvoting member of the Commission. The Chair, Vice Chairs, and members of the Commission shall be subject to removal from the Commission by the President only for neglect of duty or malfeasance in office or for other good cause shown.
(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 3553(a)(2) of title 18, United States Code;
(B) provide certainty and fairness in meeting the purposes of sentencing, avoiding unwar ranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices; and
(C) reflect, to the extent practicable, advance ment in knowledge of human behavior as it relates to the criminal justice process; and
(2) develop means of measuring the degree to which the sentencing, penal, and correctional prac tices are effective in meeting the purposes of sen tencing as set forth in section 3553(a)(2) of title 18, United States Code.
5. Section 994 of Title 28 (2000 & Supp. IV 2004) provides:
Duties of the Commission
(a) The Commission, by affirmative vote of at least four members of the Commission, and pursuant to its rules and regulations and consistent with all pertinent provisions of any Federal statute shall promulgate and distribute to all courts of the United States and to the United States Probation System-
(1) guidelines, as described in this section, for use of a sentencing court in determining the sentence to be imposed in a criminal case, including-
(A) a determination whether to impose a sentence to probation, a fine, or a term of impri sonment;
(B) a determination as to the appropriate amount of a fine or the appropriate length of a term of probation or a term of imprisonment;
(C) a determination whether a sentence to a term of imprisonment should include a require ment that the defendant be placed on a term of supervised release after imprisonment, and, if so, the appropriate length of such a term;
(D) a determination whether multiple sen tences to terms of imprisonment should be ordered to run concurrently or consecutively; and
(E) a determination under paragraphs (6) and (11) of section 3563(b) of title 18;
(2) general policy statements regarding appli cation of the guidelines or any other aspect of sentencing or sentence implementation that in the view of the Commission would further the purposes set forth in section 3553(a)(2) of title 18, United States Code, including the appropriate use of-
(A) the sanctions set forth in sections 3554, 3555, and 3556 of title 18;
(B) the conditions of probation and supervised release set forth in sections 3563(b) and 3583(d) of title 18;
(C) the sentence modification provisions set forth in sections 3563(c), 3564, 3573, and 3582(c) of title 18;
(D) the fine imposition provisions set forth in section 3572 of title 18;
(E) the authority granted under rule 11(e)(2) of the Federal Rules of Criminal Procedure to accept or reject a plea agreement entered into pursuant to rule 11(e)(1); and
(F) the temporary release provisions set forth in section 3622 of title 18, and the prerelease custody provisions set forth in section 3624(c) of title 18; and
(3) guidelines or general policy statements regarding the appropriate use of the provisions for revocation of probation set forth in section 3565 of title 18, and the provisions for modification of the term or conditions of supervised release and revo cation of supervised release set forth in section 3583(e) of title 18.
(b)(1) The Commission, in the guidelines promul gated pursuant to subsection (a)(1), shall, for each cate gory of offense involving each category of defendant, establish a sentencing range that is consistent with all pertinent provisions of title 18, United States Code.
(2) If a sentence specified by the guidelines includes a term of imprisonment, the maximum of the range established for such a term shall not exceed the minimum of that range by more than the greater of 25 percent or 6 months, except that, if the minimum term of the range is 30 years or more, the maximum may be life imprisonment.
(c) The Commission, in establishing categories of offenses for use in the guidelines and policy statements governing the imposition of sentences of probation, a fine, or imprisonment, governing the imposition of other authorized sanctions, governing the size of a fine or the length of a term of probation, imprisonment, or super vised release, and governing the conditions of probation, supervised release, or imprisonment, shall consider whether the following matters, among others, have any relevance to the nature, extent, place of service, or other incidents4 of an appropriate sentence, and shall take them into account only to the extent that they do have relevance-
(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 per sons, or a breach of public trust;
(4) the community view of the gravity of the offense;
(5) the public concern generated by the offense;
(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.
(d) The Commission in establishing categories of defendants for use in the guidelines and policy state ments governing the imposition of sentences of proba tion, a fine, or imprisonment, governing the imposition of other authorized sanctions, governing the size of a fine or the length of a term of probation, imprisonment, or supervised release, and governing the conditions of probation, supervised release, or imprisonment, shall consider whether the following matters, among others, with respect to a defendant, have any relevance to the nature, extent, place of service, or other incidents5 of an appropriate sentence, and shall take them into account only to the extent that they do have relevance-
(1) age;
(2) education;
(3) vocational skills;
(4) mental and emotional condition to the extent that such condition mitigates the defendant's cul pability or to the extent that such condition is other wise plainly relevant;
(5) physical condition, including drug de- pendence;
(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.
The Commission shall assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders.
(e) The Commission shall assure that the guidelines and policy statements, in recommending a term of imprisonment or length of a term of imprisonment, reflect the general inappropriateness of considering the education, vocational skills, employment record, family ties and responsibilities, and community ties of the defendant.
(f) The Commission, in promulgating guidelines pursuant to subsection (a)(1), shall promote the pur poses set forth in section 991(b)(1), with particular attention to the requirements of subsection 991(b)(1)(B) for providing certainty and fairness in sentencing and reducing unwarranted sentence disparities.
(g) The Commission, in promulgating guidelines pursuant to subsection (a)(1) to meet the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code, shall take into account the nature and capacity of the penal, correctional, and other facili ties and services available, and shall make recom mendations concerning any change or expansion in the nature or capacity of such facilities and services that might become necessary as a result of the guidelines promulgated pursuant to the provisions of this chapter. The sentencing guidelines prescribed under this chapter shall be formulated to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons, as determined by the Commission.
(h) The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defen dants in which the defendant is eighteen years old or older and-
(1) has been convicted of a felony that is-
(A) a crime of violence; or
(B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and Chapter 705 of Title 46; and
(2) has previously been convicted of two or more prior felonies, each of which is-
(A) a crime of violence; or
(B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and Chapter 705 of Title 46.
(i) The Commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment for categories of defendants in which the defendant-
(1) has a history of two or more prior Federal, State, or local felony convictions for offenses com mitted on different occasions;
(2) committed the offense as part of a pattern of criminal conduct from which the defendant derived a substantial portion of the defendant's income;
(3) committed the offense in furtherance of a conspiracy with three or more persons engaging in a pattern of racketeering activity in which the defen dant participated in a managerial or supervisory capacity;
(4) committed a crime of violence that constitutes a felony while on release pending trial, sentence, or appeal from a Federal, State, or local felony for which he was ultimately convicted; or
(5) committed a felony that is set forth in section 401 or 1010 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 841 and 960), and that involved trafficking in a sub stantial quantity of a controlled substance.
(j) The Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense, and the general appropriateness of imposing a term of imprisonment on a person convicted of a crime of violence that results in serious bodily injury.
(k) The Commission shall insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.
(l) The Commission shall insure that the guidelines promulgated pursuant to subsection (a)(1) reflect-
(1) the appropriateness of imposing an incre mental penalty for each offense in a case in which a defendant is convicted of-
(A) multiple offenses committed in the same course of conduct that result in the exercise of ancillary jurisdiction over one or more of the offenses; and
(B) multiple offenses committed at different times, including those cases in which the sub sequent offense is a violation of section 3146 (penalty for failure to appear) or is committed while the person is released pursuant to the pro visions of section 3147 (penalty for an offense committed while on release) of title 18; and
(2) the general inappropriateness of imposing consecutive terms of imprisonment for an offense of conspiring to commit an offense or soliciting commis sion of an offense and for an offense that was the sole object of the conspiracy or solicitation.
(m) The Commission shall insure that the guidelines reflect the fact that, in many cases, current sentences do not accurately reflect the seriousness of the offense. This will require that, as a starting point in its develop ment of the initial sets of guidelines for particular cate gories of cases, the Commission ascertain the average sentences imposed in such categories of cases prior to the creation of the Commission, and in cases involving sentences to terms of imprisonment, the length of such terms actually served. The Commission shall not be bound by such average sentences, and shall indepen dently develop a sentencing range that is consistent with the purposes of sentencing described in section 3553(a)(2) of title 18, United States Code.
(n) The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defen dant's substantial assistance in the investigation or prosecution of another person who has committed an offense.
(o) The Commission periodically shall review and revise, in consideration of comments and data coming to its attention, the guidelines promulgated pursuant to the provisions of this section. In fulfilling its duties and in exercising its powers, the Commission shall consult with authorities on, and individual and institutional represen tatives of, various aspects of the Federal criminal justice system. The United States Probation System, the Bureau of Prisons, the Judicial Conference of the United States, the Criminal Division of the United States De partment of Justice, and a representative of the Federal Public Defenders shall submit to the Commission any observations, comments, or questions pertinent to the work of the Commission whenever they believe such communication would be useful, and shall, at least annually, submit to the Commission a written report commenting on the operation of the Commission's guidelines, suggesting changes in the guidelines that appear to be warranted, and otherwise assessing the Commission's work.
(p) The Commission, at or after the beginning of a regular session of Congress, but not later than the first day of May, may promulgate under subsection (a) of this section and submit to Congress amendments to the guidelines and modifications to previously submitted amendments that have not taken effect, including modifications to the effective dates of such amendments. Such an amendment or modification shall be accom panied by a statement of the reasons therefor and shall take effect on a date specified by the Commission, which shall be no earlier than 180 days after being so submitted and no later than the first day of November of the calendar year in which the amendment or modification is submitted, except to the extent that the effective date is revised or the amendment is otherwise modified or disapproved by Act of Congress.
(q) The Commission and the Bureau of Prisons shall submit to Congress an analysis and recommendations concerning maximum utilization of resources to deal effectively with the Federal prison population. Such report shall be based upon consideration of a variety of alternatives, including-
(1) modernization of existing facilities;
(2) inmate classification and periodic review of such classification for use in placing inmates in the least restrictive facility necessary to ensure ad equate security; and
(3) use of existing Federal facilities, such as those currently within military jurisdiction.
(r) The Commission, not later than two years after the initial set of sentencing guidelines promulgated under subsection (a) goes into effect, and thereafter whenever it finds it advisable, shall recommend to the Congress that it raise or lower the grades, or otherwise modify the maximum penalties, of those offenses for which such an adjustment appears appropriate.
(s) The Commission shall give due consideration to any petition filed by a defendant requesting modification of the guidelines utilized in the sentencing of such defendant, on the basis of changed circumstances unrelated to the defendant, including changes in-
(1) the community view of the gravity of the offense;
(2) the public concern generated by the offense; and
(3) the deterrent effect particular sentences may have on the commission of the offense by others.
(t) The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall de scribe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.
(u) If the Commission reduces the term of im prisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.
(v) The Commission shall ensure that the general policy statements promulgated pursuant to subsection (a)(2) include a policy limiting consecutive terms of imprisonment for an offense involving a violation of a general prohibition and for an offense involving a violation of a specific prohibition encompassed within the general prohibition.
(w)(1) The Chief Judge of each district court shall ensure that, within 30 days following entry of judgment in every criminal case, the sentencing court submits to the Commission, in a format approved and required by the Commission, a written report of the sentence, the offense for which it is imposed, the age, race, sex of the offender, and information regarding factors made rele vant by the guidelines. The report shall also include-
(A) the judgment and commitment order;
(B) the written statement of reasons for the sentence imposed (which shall include the reason for any departure from the otherwise applicable guideline range and which shall be stated on the written statement of reasons form issued by the Judicial Conference and approved by the United States Sentencing Commission);
(C) any plea agreement;
(D) the indictment or other charging document;
(E) the presentence report; and
(F) any other information as the Commission finds appropriate.
The information referred to in subparagraphs (A) through (F) shall be submitted by the sentencing court in a format approved and required by the Commission.
(2) The Commission shall, upon request, make available to the House and Senate Committees on the Judiciary, the written reports and all underlying records accompanying those reports described in this section, as well as other records received from courts.
(3) The Commission shall submit to Congress at least annually an analysis of these documents, any rec ommendations for legislation that the Commission con cludes is warranted by that analysis, and an accounting of those districts that the Commission believes have not submitted the appropriate information and documents required by this section.
(4) The Commission shall make available to the Attorney General, upon request, such data files as the Commission itself may assemble or maintain in elec tronic form as a result of the information submitted under paragraph (1). Such data files shall be made available in electronic form and shall include all data fields requested, including the identity of the sentencing judge.
(x) The provisions of section 553 of title 5, relating to publication in the Federal Register and public hear ing procedure, shall apply to the promulgation of guide lines pursuant to this section.
(y) The Commission, in promulgating guidelines pursuant to subsection (a)(1), may include, as a com ponent of a fine, the expected costs to the Government of any imprisonment, supervised release, or probation sentence that is ordered.
1 So in original. The period probably should be a semicolon.
2 So in original. No subpar. (B) has been enacted.
3 So in original. The second comma probably should not appear.
4 So in original. Probably should be "incidence."
5 So in original. Probably should be "incidence."