Presumption of § 3553(a) Factor Consideration and Reasonableness of Below-Guidelines Variances – United States v. Ullman

Introduction

The United States Court of Appeals for the Second Circuit’s summary order in United States v. Ullman (2d Cir. Apr. 4, 2025) addresses two key sentencing issues:

Whether a district court’s failure to expressly enumerate each of the 18 U.S.C. § 3553(a) factors constitutes procedural error, and
Whether a below-Guidelines sentence can nonetheless be substantively unreasonable.

Defendant-Appellant Thomas Ullman pleaded guilty to one count of sexual exploitation of a child in violation of 18 U.S.C. § 2251(a). The district court imposed a 300-month prison term (a 60-month variance below the 360-month Guidelines range) followed by fifteen years of supervised release. On appeal, Ullman challenged both the procedural and substantive reasonableness of that sentence.

Summary of the Judgment

The Second Circuit affirmed the district court’s judgment in full. Key holdings:

Procedural Review: Because Ullman did not preserve his challenge to procedural reasonableness, the court reviewed for plain error under United States v. Marcus, 560 U.S. 258 (2010). It held that absent an affirmative record rebutting the presumption that the district court considered all § 3553(a) factors, no procedural error occurred merely because the court did not list each factor on the record.
Substantive Review: Under an abuse-of-discretion standard (Perez-Frias, 636 F.3d 39 (2d Cir. 2011)), the court found Ullman’s 300-month sentence situated well within the broad range of reasonable sentences for child-exploitation offenses and declined to disturb it.

Analysis

1. Precedents Cited

United States v. Brooks, 889 F.3d 95 (2d Cir. 2018): Established the deferential abuse-of-discretion standard for sentencing reviews.
Gall v. United States, 552 U.S. 38 (2007): Outlined examples of significant procedural errors (e.g., treating the Guidelines as mandatory).
United States v. Pruitt, 813 F.3d 90 (2d Cir. 2016): Defined procedural-reasonableness review factors.
United States v. Rosa, 957 F.3d 113 (2d Cir. 2020): Confirmed the presumption that a district court considered all § 3553(a) factors in the absence of contrary evidence.
United States v. Cassesse, 685 F.3d 186 (2d Cir. 2012): Held that § 3553(c) does not require “specific formulas or incantations” when explaining a sentence.
United States v. Verkhoglyad, 516 F.3d 122 (2d Cir. 2008): Reiterated that a sentencing record need only enable meaningful appellate review.
United States v. Villafuerte, 502 F.3d 204 (2d Cir. 2007): Confirmed that courts need not discuss every § 3553(a) factor individually.
United States v. Marcus, 560 U.S. 258 (2010): Set forth the four-part plain-error framework for unpreserved claims.
United States v. Perez-Frias, 636 F.3d 39 (2d Cir. 2011): Clarified substantive-reasonableness review should only overturn “shockingly high” or “unsupportable” sentences.
United States v. Cavera, 550 F.3d 180 (2d Cir. 2008): Emphasized deference to district courts under the totality-of-the-circumstances approach.

2. Legal Reasoning

The court’s reasoning unfolded in two stages:

a. Procedural Reasonableness

Plaintiff did not object at sentencing to the district court’s handling of § 3553(a) factors, so plain-error review applies (Marcus).
Under § 3553(c), a district court must explain its chosen sentence in open court, but no “specific formulas or incantations” are required (Cassesse).
Absent record evidence to the contrary, appellate courts presume that the district judge considered all relevant § 3553(a) factors (Rosa).
Ullman’s reference to national sentencing data for child-exploitation offenders did not overcome the presumption and so could not trigger plain error.

b. Substantive Reasonableness

A district court’s below-Guidelines variance remains subject to abuse-of-discretion review, not a separate presumption of unreasonableness.
Because the Guidelines range of 360 months reflected a correct calculation (offense level 42, criminal history II) and the court imposed a 300-month term—a significant 60-month variance—the sentence was firmly within the “broad range of reasonable sentences.”
The court identified proper aggravating factors—the number of minors involved (over 200), the volume of images (2,500+), and the predator’s calculated manipulation—and exercised its discretion in weighing those factors heavier than the mitigating circumstances.

3. Impact

This decision will guide future sentencing appeals in several ways:

It reinforces the Rosa presumption that district courts consider all § 3553(a) factors absent affirmative rebuttal.
It clarifies that appellate courts need not demand rote recitation of each § 3553(a) factor—sentencing explanations must simply permit meaningful appellate review.
It affirms that substantial below-Guidelines variances are not per se suspect, so long as the district court’s reasoning is sound and within the broad range of permissible outcomes.
It provides a roadmap for how unpreserved challenges to procedural reasonableness will be evaluated under plain error review.

Complex Concepts Simplified

Plain Error Review: An appellate standard for issues not raised before the trial court. The defendant must show (1) an error, (2) that is clear or obvious, (3) affecting substantial rights, and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings (Marcus).
Procedural vs. Substantive Reasonableness: Procedural: Focuses on whether the court correctly calculated the Guidelines range, considered § 3553(a) factors, and adequately explained its decision.
Substantive: Considers whether the length of the sentence is reasonable in light of the totality of the circumstances, giving deference to the district court’s balancing of factors.
Variance vs. Departure: Departure: A sentence outside the Guidelines range based on grounds listed in the Guidelines themselves.
Variance: A sentence outside the Guidelines range based on the broader § 3553(a) factors.
§ 3553(a) Factors: Sentencing criteria Congress set out: nature and circumstances of the offense; history and characteristics of the defendant; need for deterrence, protection, and rehabilitation; applicable Guidelines range; sentencing disparity concerns among similarly situated defendants; and restitution, if any.

Conclusion

United States v. Ullman establishes two important precedents in the Second Circuit:

Absent clear evidence to the contrary, appellate courts will presume that district courts have considered all relevant § 3553(a) factors—even if the judge does not list them individually on the record.
Reasoned below-Guidelines variances remain well within the district court’s discretion and will rarely be overturned on substantive-reasonableness grounds.

These holdings underscore the deference afforded to sentencing courts in the federal system and clarify the limited scope of appellate review when defendants fail to preserve procedural objections.