JOHN MENDEZ, District JudgePage 1
The Court, having considered Plaintiffs' Motion to Seal, Memorandum in Support and its supporting papers, the arguments of counsel, the pleadings and papers lodged and on file in this action, and good cause appearing, IT IS HEREBY ORDERED that:
The Plaintiffs' Motion to Seal is GRANTED. The Clerk of Court shall permanently seal the following documents:
• Plaintiffs' Corrected Opposition to Defendant's Motion for Summary Judgment;
• Exhibit FF to the Declaration of Jessica Culpepper submitted in support of Plaintiffs' Motion for Partial Summary Judgment.
The standard of review I set out in part II.E, supra, gives meaning to appellate review of sentences while avoiding this result as much as possible. Under my approach, this court is not in the business of reweighing all of the facts in the record, conducting a § 3553(a) inquiry de novo, and declaring a range of sentences that is objectively correct or "reasonable." Rather, under my approach, when we reverse a sentence on substantive grounds, we are simply holding that under the non-clearly erroneous facts found by the district judge and in light of the district judge's explanation, no rational judge could have imposed that sentence. We would not hold as a matter of law that on a given set of facts, only a sentence of at least so-many years' imprisonment is reasonable. Nor would we decide the import of particular facts to the § 3553(a) inquiry for all time; for example, we would not hold, as the court does, that pedophilia-as-diminished-capacity can never form the basis for a downward departure in a sex crimes case. Such a standard gives district judges maximum discretion to sentence a defendant anywhere along the statutory sentencing range and thus is more consistent with the remedy fashioned by the Supreme Court in Booker.
B. Institutional Harm
The court's willingness to resentence does immense and immeasurable institutional damage. "`It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.'" Gall, 552 U.S. at 52, 128 S.Ct. at 598 (quoting Koon v. United States, 518 U.S. 81, 113, 116 S.Ct. 2035, 2053, 135 L.Ed.2d 392 (1996)). The district court is unquestionably the best judicial actor to conduct this "unique study" and to undertake the open-ended and fact-heavy § 3553(a) inquiry. See, e.g., Gall, 552 U.S. at 51-52, 128 S.Ct. at 597-98 (explaining that the district court is in a "superior position to find facts and judge their import under § 3553(a) in the individual case" because it looks the defendant and witnesses in the eye, gains insights not conveyed by the cold record, and has extensive sentencing experience) (quotation omitted). The district court's effective use of its expertise, however, turns on the active participation of the lawyers — the prosecutors and defense counsel — in the adversary proceeding envisioned by Rita and Gall and fleshed out by my opinion today. Their professionalism is vital to the sentencing process. Indeed, if sentences are to inspire the confidence of the defendant and the public, the sentencing hearing in the district court must be the "main event," rather than a "tryout on the road" for the real forum that will determine the sentence. Wainwright v. Sykes, 433 U.S. 72, 96, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977).
Today's decision sends the unmistakable message that the district court is nothing but a tryout on the road. This diminishes the district courts' institutional role in the eyes of the public and the legal profession because it de facto strips the district courts of their Congressionally given authority. If the district court procedure is merely a tryout, a busy district court may be inclined to pay mere lip service to its § 3553(a) duty and simply impose a Guidelines sentence; after all, its sentence would only be tentative, subject to second-guessing on appeal. And even if the district court wanted to do its duty, the prosecutor may not present the government's best case to the district court — better to wait and see what sentence the court imposes before expending the government's resources.
In this case, the Government participated in the diminishment through the prosecutor's failure to present a robust sentencing argument to the district court and failure to adequately call attention to the mistakes she believed the district court made. Defense counsel are required by the Sixth Amendment to perform at the highest professional level and to treat the sentencing hearing before the district court as the main event. If defense counsel's performance is wanting, counsel may have to answer for it in a collateral proceeding alleging a violation of the defendant's Sixth Amendment right to the effective assistance of counsel. The prosecutor, however, does not run the risk of having to answer to a district judge in a collateral proceeding on a charge of inept performance.
This would not only flout the Congressional command embodied in § 3553(a), it would also deny justice for either the United States or the defendant. If the facts and circumstances of the case call for a sentence outside the Guidelines sentencing range to satisfy the § 3553(a)(2) purposes of a federal sentence — and they often will — the sentence will not be tailored to the unique facts before the court, will not serve the parsimony principle, and will work an injustice on one of the parties.
District courts' tendency to impose sentences within the Guidelines range worsens this already perverse incentive. This circuit's district courts imposed Guidelines sentences in 65.6% of the cases from October 1, 2008 through September 30, 2009. See United States Sentencing Commission, Sourcebook of Federal Sentencing Statistics, tbl. 26 (2009). The court's approach gives the government every incentive to rest on the Guidelines and put on no § 3553(a) evidence before the district court (as the government frequently does). In the infrequent event that the district court imposes a below-Guidelines sentence, the government would lose nothing because it could make its § 3553(a) case for the first time before the court of appeals.
The court's willingness to ignore time-honored contemporaneous objection and procedural default rules diminishes the status of the district courts for another reason. These rules are designed to force the parties to give the district court everything it needs to make sound decisions and the first chance to fix any errors. This, in turn, leads to an enhanced quality of judicial decision making, preserves the sentence's finality, and may prevent unnecessary appeals. The court's message to the prosecutors in this circuit is: don't bother, there is no need to try to put the district court in the best position to make decisions.
Jones, after all, is simply an application of the contemporaneous objection rule to the sentencing context. Sentencing is unique because the district court is not bound by the evidence, the parties' proposed findings and conclusions, and the parties' arguments at the close of the hearing. If the district court bases the sentence on findings or arguments not articulated at the sentencing hearing, the parties must have an opportunity to object to the court's findings and conclusions and obtain the correction of any error the district court may have made.
Sadly, our approach today diminishes the district court's role for no good reason. It transfers sentencing authority from district judges to the courts of appeals, which lack the district judges' experience and expertise in imposing criminal sentences. As the length of today's opinion shows, even attempting to duplicate the district judge's § 3533(a) task requires a huge investment of this court's resources. Despite the huge investment, there is no real return: due to our lack of experience and expertise, we are poorly suited to the job and will not infrequently reach a wrong result. Moreover, our fact-intensive resentencing decisions will be incapable of generalization and will hinder our ability to establish clear guidance for the district courts of our circuit. See Koon v. United States, 518 U.S. at 98-99, 116 S.Ct. at 2046-47; see also Buford v. United States, 532 U.S. 59, 65-66, 121 S.Ct. 1276, 1281, 149 L.Ed.2d 197 (2001) (explaining that if the question presented "grows out of, and is bounded by, case-specific detailed factual circumstances," then the "value of appellate court precedent" is limited). Lastly, as we fritter away our resources on sentencing appeals, other litigants in the appellate queue will suffer.
This court is not well-suited to sentence offenders for another and even more important reason. The Supreme Court has made abundantly clear the crucial role that process plays in sentencing. See Gall, 552 U.S. at 49-50, 128 S.Ct. at 596-97. The public's and the defendant's confidence in the justice of a sentence turn on how the sentencer arrived at it. Given the strictures of appellate review, it is impossible for us to accord a defendant the process that is due. See, e.g., Fed.R. Crim P. 32(i). When this court resentences a defendant, it deprives him of a meaningful hearing in which he has the right to address a judge who can look him in the eye before deciding his fate. See Fed.R.Crim.P. 32(i)(4)(A)(2)(ii). Because the defendant's first notice of the reasons for the resentence and its factual bases is provided by this court's opinion imposing the sentence, he is deprived of the right to object to the reasons and factual bases. And, crucially, it deprives him of a right to appeal. Such treatment of a litigant not only breeds disrespect for the rule of law, but also raises serious due process concerns. See Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 1207, 51 L.Ed.2d 393 (1977) (plurality opinion) (concluding that the due process clause was violated when "the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain").
That the Government's brief cites evidence and advances arguments not presented to the district court in the first instance is of no moment. Defense counsel would assume that this court, adhering to its time-honored rule that matters not presented to the trial court will not be considered, Depree v. Thomas, 946 F.2d 784, 793 (11th Cir. 1991), would refuse to entertain the evidence and arguments, and thus would not waste precious briefing space to respond.
The defendant would have the right to petition the court for rehearing, but a rehearing petition does not perform the same service a post-sentence objection would provide in the district court.
In sum, when placed on a balance sheet, the grave institutional harm caused by the court's approach significantly outweighs any benefit the approach might yield. Resentencing defendants on appeal diminishes the role of the district court in the eyes of the legal profession, and it diminishes the public's confidence in the district courts as an institution for administering criminal justice. It misallocates and gobbles up judicial resources. None of this is necessary. If a sentence constitutes an abuse of discretion, we should simply say so and return the case to the district court, the appropriate forum for the main event.
The only benefit that comes to mind is finality. In resentencing the defendant, we make his sentence final and bring his case to a close.
The court acknowledges that we have reviewed hundreds of cases for substantive reasonableness since Booker was decided, but minimizes the impact of its decision by pointing out that the Eleventh Circuit has only reversed sentences in four of these cases. See ante at 1191. After today's decision, however, we may see more sentence appeals because any dissatisfied party can ask this court to resentence the defendant based on information favorable to its position that the district court presumably ignored by neglecting to mention the information in stating its reasons for the sentence. And with the precedent that we can consider evidence not in the record and make new arguments for or against a party on appeal, we may see more sentences vacated — or defendants resentenced. The court's decision could affect many of the hundreds of sentencing appeals we will see in the years to come.
The court claims that if Irey's sentence is reasonable, then any sentence is reasonable and that would return us to the pre-SRA days where a district judge was a "law unto himself or herself." See ante at 1223 (quotation omitted). These arguments do not justify the court's approach of resentencing Irey. First, we can say that Irey's sentence is unreasonable and set it aside under classic abuse of discretion review, we need not resentence Irey to solve the reasonableness concern. Second, we need not worry about a return to the pre-SRA days given the post- Booker requirements that district judges exercise their sentencing discretion only after conducting a formal process, applying statutory factors, and explaining their rationale — which is then subject to appellate review for abuse of discretion.
V.
For the foregoing reasons, I would vacate Irey's sentence and remand to the district court for resentencing.
EDMONDSON, Circuit Judge, dissenting, in which BIRCH, BARKETT and MARTIN, Circuit Judges, join:
The limit that the law places on the right use of appellate court power to interfere with the sentencing decisions of United States District Judges (who, of course, have — under the law — powers of their own) is, for me, what this appeal is about. The specific case before us involves a serious crime and ghastly conduct — "horrific" in the District Judge's words — on the part of Defendant. And, no party has contended that the District Judge, in imposing the sentence, made a significant procedural error. The government prosecutors (who bear the burden of showing reversible error) contend that the sentence imposed in district court is too lenient and that no sentence would be lawful except the maximum sentence of imprisonment that the pertinent criminal statute will allow: 30 years.
Only a case without a substantial procedural error is in my mind as I write this dissent.
Because of the interplay of the Guidelines and the pertinent criminal statute, the Guidelines (which the District Judge recognized as a sentencing factor) called, in this case, for 30 years' imprisonment. But the Guidelines are not mandatory as everyone knows. See, e.g., Nelson v. United States, ___ U.S. ___, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009) (reversing Fourth Circuit and stressing that "Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable" by sentencing courts.); Spears v. United States, ___ U.S. ___, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (reversing Eighth Circuit and upholding a below-Guidelines sentence in crack cocaine case based entirely on sentencing District Judge's policy disagreement with Guidelines).
The issue is not whether federal appellate judges ought to do their duty. They must. And the issue is not whether appellate courts can review sentences and sometimes correctly set them aside, even when the sentence was imposed without procedural errors. They can. Appellate judges do have some legitimate power to review the substance of sentences: that is, to determine whether a District Judge has imposed a sentence that is either too lenient or too harsh as a matter of law. The general question presented here is what is the limit, under the law, on the power of appellate judges in deciding such reviews.
The legal limit on the power of appellate judges to interfere with sentences imposed by District Judges is staked out by the standard of review. In Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the Supreme Court — in the course of reversing an appellate court judgment that had overturned a district court's sentence as too light — set the standard of review: we only look to see if the sentence is reasonable in the light of a "deferential abuse-of-discretion standard." Id. at 40, 128 S.Ct. at 591.
In reversing the District Judge's far-below-the-Guidelines sentence, the Eighth Circuit in Gall had studied the record and opined that the District Judge in sentencing had given "too much weight" to X, "did not properly weigh" Y, given "too much emphasis" to Z, and so on. The Supreme Court said, "Although the Court of Appeals correctly stated that the appropriate standard of review was abuse of discretion, it engaged in an analysis that more closely resembled de novo review of the facts presented and determined that, in its view, the degree of variance [from the advisory guideline] was not warranted." Gall, 552 U.S. at 56, 128 S.Ct. at 600.
Although the Eighth Circuit vacated the sentence imposed by the district court and remanded for resentencing, the Eighth Circuit did not set a precise sentence to be imposed on Mr. Gall on remand.
This standard of review promotes (among other things) finality in criminal cases. But the deferential abuse-of-discretion standard was selected mainly to recognize that the Sentencing Guidelines are advisory only and a District Judge must not presume that the sentence indicated by the Sentencing Guidelines is a reasonable sentence for the convicted person standing before the District Judge: the District Judge must make for each convicted person "an individualized assessment based on the facts presented." Gall, 552 U.S. at 50, 128 S.Ct. at 597. Thus, sentencing is a fact-bound determination. When the Supreme Court laid down the law, the Court pointed out that a District Judge "is in a superior position [relative to an appellate court] to find facts and judge their import under § 3553(a) in the individual case. The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record." Id. at 51, 128 S.Ct. at 597 (internal quotation omitted and emphasis added).
In sentencing, a District Judge is to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in" 18 U.S.C. § 3553(a)(2). (emphasis added).
The sentence imposed needs
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
In my view of the law, a District Judge's decision on what sentence to impose is essentially a fact finding, especially as here where witnesses testified at the sentencing hearing: oral evidence particularly raises issues of credibility. Consider Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 401-02, 110 S.Ct. 2447, 2459, 110 L.Ed.2d 359 (1990) (discussing deferential standard of review for sanctions imposed under Fed.R.Civ.P. 11 as one to review a fact-intensive question). And "[w]hen an appellate court reviews a district court's factual findings, the abuse-of-discretion and clearly erroneous standards are indistinguishable: . . ." Id. at 401, 110 S.Ct. at 2458.
The clearly erroneous/deferential abuse-of-discretion standards deprive the appellate court of the authority to reweigh conflicting evidence and to reconsider facts already weighed and considered by a district court. See Cooter Gell, 496 U.S. at 400-04, 110 S.Ct. at 2458-60; see also Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 857-58, 102 S.Ct. 2182, 2190, 72 L.Ed.2d 606 (1982). As I grasp it, the deferential abuse-of-discretion standard (while certainly no "any evidence" rule or scintilla rule) calls for nothing more than some reasonable basis in the record for the District Judge's decision. Because the standard prohibits appellate judges from making their own determination of where the weight of the evidence lies, the law greatly restrains the maneuvering room of appellate courts. The restraint flows directly from the deferential abuse-of-discretion standard of review chosen for us by the Supreme Court. I submit that an appellate court's reweighing of the evidence or giving the facts a different construction — to grant something in the record more or less value than the District Judge did and so to conclude that the record overall weighs more heavily for a higher sentence — smacks of a kind of de novo review à la the Eighth Circuit's approach in Gall: the appellate court oversteps its authority.
Appellate courts can set aside a sentence as too lenient to be reasonable as a matter of law. But appellate courts first need to ask only one question: could an objectively reasonable District Judge looking at the record "on the whole" have found the ultimate sentence imposed to be a "sufficient" one, when the record (including all the evidence and reasonable inferences and credibility evaluations) is viewed in the light most favorable to the sentence. If the answer is "Yes," the appellate courts can correctly do nothing but affirm the sentence. This deferential standard limits severely the authority of appellate judges to interfere with sentences, even when the appellate judges — giving more or less weight to one circumstance or another — think the sentence, in an immediate case, is not "just" or not the most "just."
On the other hand, this standard of review — because it demands some objective, reasonable basis in the record — guards against true arbitrariness and stops short of allowing District Judges the freedom to sentence simply as they please. The deferential abuse-of-discretion standard of review acknowledges that sentencing is about marshaling the facts and applying the fact-dependent legal criteria set out by 18 U.S.C. § 3553(a). The pertinent standard places the main responsibility and legal power for sentencing squarely on United States District Judges whose business is fact finding; this standard very greatly restricts the authority of appellate judges to interfere, although the appellate judges would have definitely imposed some other sentence. "[I]t is not for the Court of Appeals to decide de novo whether . . . the sentence [is] reasonable." Gall, 552 U.S. at 59, 128 S.Ct. at 602. "The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court." Id. at 51, 128 S.Ct. at 597.
Turning to the facts of the particular case before us, I conclude that the experienced District Judge did not abuse his discretion in deciding that 17.5 years of imprisonment plus a lifetime of supervised release was a sufficient sentence given all the circumstances. That this serious crime deserves a substantial term of imprisonment is beyond debate (and, in reality, has never been debated). I trust that most American judges (I hope all of them) would accept that 17.5 years of imprisonment is a substantial term of imprisonment. And it is years beyond the statutory minimum sentence for the only crime with which Defendant was charged.
Defendant might actually serve something less than 17.5 years because the Executive Branch, over the years, "may" award him some limited credit toward service of his sentence if the prison administrators determine Defendant has "displayed exemplary compliance with institutional disciplinary regulations." See 18 U.S.C. § 3624(b)(1). How much credit Defendant will actually be awarded in the uncertain future is highly speculative. For review purposes, it seems best to me to treat a sentence imposed by a district court — in this case, 17.5 years plus a lifetime of supervised release — as a fixed sentence. I believe this approach has been our custom.
The government only charged Defendant with one count of production of child pornography per 18 U.S.C. § 2251(c). Other cases involving longer sentences in child pornography cases involved either prior criminal convictions or more counts or both.
The government says that nothing but 30 years of imprisonment would be a lawful sentence in the circumstances of this case. I cannot agree with that legal conclusion. First, I think the argument belittles the punishment involved in a lifetime of supervised release that follows a substantial term of imprisonment. The Supreme Court, in Gall, made it plain to me that supervised-release punishments count — under the law — as real punishments and must not be treated by appellate courts as nothing or, at least, nothing significant when sentences are being reviewed. See id. at 48-49, 128 S.Ct. at 595-96. Second, the record in this particular case contains many things that, I accept, would allow (that is, provide an adequate evidentiary/factual basis for) an objectively reasonable judge to back off the absolute thirty-years-imprisonment maximum sentence.
It is undisputed that Defendant surrendered after being indicted, plead guilty, and expressed remorse. He accepted responsibility and relieved the Government of the trouble and expense of a trial. After surrendering and posting bond, he entered into a residential treatment center: a step toward rehabilitation. It is also undisputed that Defendant has no prior criminal convictions. Furthermore, Defendant did not obstruct justice and, to the contrary, cooperated with the government providing information about the nature of his offense (time, places, identity of others with whom he dealt and so forth). These kinds of things have traditionally and commonly been reflected in a lessening of a sentence from what it would have otherwise been. In the context of the full record, these things provide a reasonable basis for the sentence in this case to be less than the maximum allowed by the statute.
Contrast United States v. Kapordelis, 569 F.3d 1291 (11th Cir. 2009), where defendant — a medical doctor charged, among other things, with producing pornographic images of underage boys (including one underage boy who was his near relative and another underage boy who had been the doctor's patient: defendant had seemingly drugged the boys first) — insisted (despite powerful photographic evidence against him) on a trial by jury and, at his sentencing, never accepted responsibility, and called prosecutors "liars" and compared them to Hitler; and the district court found the defendant would not likely be rehabilitated given "his attitude and lack of remorse."
Moreover, at the sentencing hearing in district court, the Defendant stood before and spoke to the judge who would impose the sentence upon him; and Defendant presented witnesses on his behalf: this case is an oral-evidence case. The government presented no witnesses. Several friends and family members testified to Defendant's characteristics generally and history of good works as an employer, parent, and so on and to their own loyalty and support of Defendant, as a human being who was in disgrace and in trouble. I appreciate that this kind of humanizing testimony raises a familiar debate about whether it is possible for character to be compartmentalized so that a person who is weak (or wicked) in one way can really be strong (or good) in some other ways or whether character must be viewed holistically so that a person's weak or wicked character in one context produces a reliable conclusion in every context. This familiar debate has been taken up by Aristotle and Kant and other Greats. And I doubt the power of a Court of Appeals to resolve it as a matter of law. Whatever I personally might think about this family-and-friend evidence, the District Judge in this case had the legal right to determine the credibility of the witnesses before him and to give the testimony the weight that he did. Given the entire record, this evidence was reasonable evidence to support a sentence less than the maximum sentence allowed by the pertinent statute.
I think it was Robert Frost who said that "there are tones of voice that mean more than words." A District Judge hears those tones. Furthermore, a District Judge sees the witness's demeanor as well as hears the testimony. I submit these opportunities are big advantages when it comes to fact finding.
In addition, at the sentencing hearing, Defendant presented an expert witness: Dr. Shaw. The government did not; and the government did not object to the expertise of the Defendant's expert witness. The expert never suggested (nor has anyone else) that Defendant was not guilty on account of some mental disorder. But the mental health expert did testify that this Defendant was afflicted with a recognized mental disorder: heterosexual pedophilia. The expert testified that this disorder was not something that Defendant had chosen to have, but was something that was "within" Defendant (something "natural biological") and caused Defendant to have a tendency toward being attracted to sexual behavior with prepubescent children. (This evidence, I submit, supports the District Judge's reference to Defendant as a "victim": in the sense of a victim of the circumstance of Defendant's own biology.) The expert also testified that the disorder was treatable, that this Defendant was amenable for treatment, that Defendant's aging — a reduction naturally in testosterone and a reduction naturally in sex drive — would likely be helpful to his treatment, and that Defendant was not likely to be a recidivist. The District Judge who saw and heard this expert witness could credit the evidence. Given the entire record, this evidence is reasonable evidence to support a sentence of less than the maximum allowed by the statute.
Defendant was 50 at the time of sentencing. According to the Census Bureau, a white male of 50 would typically have a life expectancy of less than 30 years. See U.S. Census Dep't., 2010 Statistical Abstract, Table 103 (available at http://www.census.gov/compendia/statab/2010/tables/10s0103.pdf). A 30-year maximum sentence then had a realistic likelihood of being, in fact, life imprisonment for this Defendant. Congress, in 18 U.S.C. § 2251(c) — the statute of Defendant's conviction — does not call for life imprisonment as a statutory punishment. (Taking into account life's uncertainty, I understand that any term of imprisonment might turn out to be actually life imprisonment; but, in reality, some sentences of years are, for some defendants, more likely to be life sentences than other sentences for other defendants. This reality of human age seems all right to consider, although never would I contend that persons aged 50 or older are, as a matter of law, exempt from a 30-year term of imprisonment under the pertinent statute.) The District Judge thought that Defendant's age was pertinent to sentencing, especially Defendant's advanced age upon his release from imprisonment. I accept that the circumstance of Defendant's age was a permissible, reasonable basis, in conjunction with everything else, for a sentencing court to impose a sentence of less than the maximum on this Defendant.
Of course, a number of elements make up the total record. Still, while I accept that other facts and evidence (some of it conflicting) are in the record, I think what I have summarized is legally enough to justify — I do not say compel — an objectively reasonable judge to find that a sentence of less than the 30 years of imprisonment would be sufficient.
However I might have judged the weight of the evidence and facts in my own reckoning of the best sentence, I accept that the record as a whole was sufficient to allow — as a matter of law — the imposition of something less than the maximum sentence. Imponderables are involved, and a District Judge has unique access to and familiarity with the individual defendant. Here, the sentencing District Judge thought out and selected a sentence for this case that involved a substantial period of imprisonment, including a period of years (not hours, weeks or months, but years of imprisonment) above the statutory minimum. Then, to follow the term of imprisonment, the sentencing judge imposed a lifetime of supervised release with many special conditions: a "substantial restriction of freedom" as the Supreme Court put it in Gall. Gall, 552 U.S. at 48, 128 S.Ct. at 595.
The list of conditions of supervised release was long and tailored for someone like Defendant.
The sentencing range under the one statute involved is not very wide: only 15 years from the minimum sentence (15 years) to the maximum sentence (30 years). Cf., e.g., 18 U.S.C. § 2422(b) (a sexual offense allowing for imprisonment of ten years to life); 21 U.S.C. § 841(b)(1)(A) (a drug offense allowing for imprisonment of ten years to life). So, the room for the exercise of sentencing discretion is markedly controlled from the start by the statutory range set by Congress; therefore, it seems to me that it is harder for a sentencing judge to go far off the rails. This observation seems even clearer to me where, as here, the District Judge did impose a lengthy sentence of imprisonment: not the maximum, but neither did he impose the minimum sentence (or something that was merely hours, weeks, months, or only one year beyond the minimum).
I think the record would support a variety of lawful sentences, including some sentences heavier than the one actually imposed. Nevertheless, the government's prosecutors have failed to demonstrate to me that there is no legitimate basis for the district court's actual sentencing decision. All things considered and applying the deferential abuse-of-discretion standard, I cannot conclude that the sentence imposed was beyond the outside borders of reasonable. For more background, see United States v. Irey, 563 F.3d 1223 (11th Cir. 2009) (vacated for rehearing en banc).
In the federal judicial system, I believe that the district courts have duties and powers — mainly about fact finding and about weighing in the balance some facts against others — that are theirs and not ours. I believe that one of the important duties of appellate judges is to allow District Judges room to carry out the duties of District Judges. I believe the deferential abuse-of-discretion standard set out and applied in Gall was intended to buttress the district courts' sentencing powers and to limit the appellate courts' powers to recast what is essentially a factual issue into a question of law. Given these principles, I believe it is jurisprudentially important to steer clear of de novo review, or something resembling it, in an appeal about the substantive-reasonableness of a sentence. Considering this record and all, I would defer to the District Judge's decision and affirm the sentence in today's case.
I dissent with respect and not without regret.
BIRCH, Circuit Judge, dissenting:
The time-worn adage in jurisprudence that hard facts often lead to bad law is certainly applicable to this case. I have little doubt that had I been the sentencing judge I might well have fashioned a different and harsher sentence for this defendant. But the decision at play here is the respective roles of the appellate court and the sentencing court. Our appellate role is properly constrained by the standard of review to which we are required to adhere. As Judge Edmondson persuasively describes the application of that standard to the record, it compels an affirmance of the sentencing court's judgment in this case. Accordingly, I respectfully dissent and join in the dissenting opinions of Judge Edmondson and Judge Barkett.
BARKETT, Circuit Judge, dissenting, in which BIRCH and MARTIN, Circuit Judges, join:
I agree with just about everything in Judge Edmondson's dissent. If there is any point of departure, it is the addition (or clarification, in my view), that the district judge must articulate the reasons for the sentence imposed based on the evidence in the record. Because the record may support a number of reasonable sentences, this articulation is necessary so that the appellate court can be satisfied that the district judge actually considered how all of the § 3553 factors relate to the defendant's individual case.
I previously explained why it is important for district judge's to give reasons in my dissent in United States v. Docampo, 573 F.3d 1091 (11th Cir. 2009).
First, Congress explicitly mandated the articulation of reasons:
Congress requires the district court to "state in open court the reasons for its imposition of the particular sentence," § 3553(c), and before doing so, the court must consider each of the factors delineated in § 3553(a) to arrive at the appropriate sentence.Docampo, 573 F.3d at 1106. Second, not every case requires an elaborate explanation:
What is "enough" or "adequate" depends upon the circumstances of the particular case at hand[]. . . . [L]ess may be required if a case is "simple" or "typical." The logical corollary of this conclusion, however, is that more is required when a judge is faced with an atypical case or the defendant argues that a departure from the Guidelines is warranted.
. . . .
. . . Thus, while a mechanical discussion of each § 3553(a) factor may not be necessary in every case, a district court has a responsibility to analyze the relevant factors on the record. These would include a particular § 3553(a) factor raised by a defendant, or one clearly implicated by the specific facts of that case. . . .
Moreover, the sentencing judge should be able to articulate the rationale that justifies the actual number of months or years that make up a defendant's sentence, whether that number is within or outside the Sentencing Guidelines. A reasonable sentence is one for which there is an explanation of how the particular length of the imposed sentence corresponds to the individual sentencing needs of the particular defendant. For example, how does a sentence of fifteen years, as opposed to a sentence of five or ten years, or twenty-two years for that matter, serve the needs of individual and general deterrence while also addressing the nature of the crime and the individual characteristics of the defendant in a given case? The number of years cannot be determined simply by an individual judge's gut feeling. As a society that values due process, we must have some rationalization for every step of our judicial system. There should be a transparent, logical, and reasonable justification to support the amount of jail time prescribed for a particular defendant based on the § 3553 factors.Id. at 1106-08, n. 7.
Here, the district judge meticulously and conscientiously followed the dictates of Congress. Indeed, I do not see what more the district judge could reasonably have done to assure us that he considered and weighed all of the § 3553 factors as they applied to this case. The district judge considered every piece of evidence in the extensive record before him, which is clearly sufficient to permit meaningful appellate review. The problem, if there is one, is that, beyond the offense itself, the government failed to present any evidence whatsoever to rebut or challenge any of the defendant's witnesses at sentencing. And, it was not the district judge's job, nor is it ours, to supply and rely on evidence that was not presented.
The bottom line is that the majority — based on its own finding of facts and credibility determinations — simply disagrees with the district judge's conclusion that seventeen years followed by a lifetime of supervised release is an appropriate sentence for Irey. Notably, the majority really does not offer any explanation for mandating that the district judge impose a sentence of thirty years of imprisonment lieu of Irey's current substantial sentence. Because the majority is not "reviewing" the district judge's judgment but rather is substituting its own and is assuming the role that the prosecutor failed to perform in presenting evidence that could arguably support a longer sentence, I dissent.
The majority cites to numerous published and unpublished cases involving various different offenses against minors in which the defendants therein received sentences in excess of thirty years to suggest that Irey's sentence of seventeen and one-half years creates a "substantial disparity" that renders it unreasonable. Majority Op. at 1219-21. Looking at only the length of the various sentences in the cited cases, Irey's sentence arguably presents a disparity. However, Congress did not command sentencing courts to avoid mere "disparities" or even "substantial disparities." What it did require is that sentencing courts consider the need to avoid unwarranted disparities among similarly situated defendants. See 18 U.S.C. § 3553(a)(6). Whether one defendant's sentence creates an unwarranted disparity from other defendants necessarily requires a sentencing court to undertake a fact-intensive inquiry in the first place to determine whether the defendants are similarly situated. See United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009) ("A well-founded claim of disparity, however, assumes that apples are being compared to apples.") (citation omitted). I believe a court cannot truly assert that one defendant's sentence creates an unwarranted disparity from another or several defendants' without the benefit of the entirety of the sentencing records of all the defendants. However, even if this extremely fact-intensive analysis can be based on the information contained in appellate opinions alone, consideration of any potential unwarranted sentencing disparity is not a task for the appellate court to complete in the first instance as the majority does in this case.
Moreover, several of the majority's cited cases contain facts that could just as legitimately support a finding that those defendants were not similarly situated to Irey and thus do not support the conclusion that the sentence imposed on Irey created an unwarranted disparity. For example, several of the cases concern defendants who, unlike Irey, proceeded to trial. We have previously held that defendants who plead guilty and assist the government are not similarly situated to those who proceed to trial. See e.g., Docampo, 573 F.3d at 1101 (holding that a defendant who proceeded to trial was not similarly situated to his co-conspirators who plead guilty and assisted the government and thus there was no unwarranted disparity between the defendant's lengthy 270 month sentence and his co-conspirator's substantially shorter sentences).
As I also noted in my dissent in Docampo:
Appellate courts have had no difficulty finding unreasonableness when asking [whether a sentence is enough punishment]. See, e.g., [United States v.] Pugh, 515 F.3d 1179 [(11th Cir. 2008)] (finding that probation for a possessor of some child pornography was insufficient). We should likewise be willing to find that, in a case that warrants it, "a within-Guidelines sentence is `greater than necessary' to serve the objectives of sentencing," Kimbrough [v. United States], [ 552 U.S. 85, 91], 128 S.Ct. [558], 564 (quoting § 3553(a)). Our appellate sentencing review should not develop into a one-way rachet upwards. Just as the district court has an obligation not to assume the Guidelines are automatically reasonable, we too — as a circuit that does not apply a reasonableness presumption — are obligated to ask whether a within-Guidelines sentence is reasonable without any thumb on the scale. Thus, reiterating what we have previously noted, there are "many instances where the Guidelines range will not yield a reasonable sentence. . . . In some cases it may be appropriate to defer to the Guidelines; in others, not." United States v. Hunt, 459 F.3d 1180, 1184 (11th Cir. 2006).Docampo, 573 F.3d at 1110-11.
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