United States v. Smith
need for the sentence imposed; the kind of sentences available; the sentence range recommended
by the Sentencing Guidelines; and the need for restitution. The court also knew the Guidelines
range, which the parties agreed was properly calculated, and was aware that the Guidelines were
advisory. For these reasons, we conclude that defendant’s sentence is procedurally reasonable.
Defendant also argues that his sentence is substantively unreasonable. “A sentence is
substantively unreasonable if the district court ‘selects the sentence arbitrarily, bases the sentence
on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable
amount of weight to any pertinent factor.’” United States v. Husein, 478 F.3d 318, 332 (6th Cir.
2007) (citing United States v. Caver, 470 F.3d 220, 248 (6th Cir. 2006)).
Defendant acknowledges our jurisprudence establishing a presumption of reasonableness to
sentences falling within the Guidelines range, but concludes that “[a] presumption of
unreasonableness applies in this case given that the district court sentenced Mr. Smith six to seven
years over the appropriate advisory Guideline range, in effect doubling the maximum of that range.”
While defendant is correct that the sentence is a substantial deviation from the Guideline range, his
assertion that it bears a presumption of unreasonableness is incorrect.
Recently, the Supreme Court held that “a court of appeals may apply a presumption of
reasonableness to a district court sentence that reflects a proper application of the Sentencing
Guidelines.” Rita, 127 S. Ct. at 2462.
Nevertheless, while the Supreme Court endorsed a
presumption of reasonableness for sentences within the Guidelines range, it did not allow the
converse: “The fact that we permit courts of appeals to adopt a presumption of reasonableness does
not mean that courts may adopt a presumption of unreasonableness. Even the Government concedes
that appellate courts may not presume that every variance from the advisory Guidelines is
unreasonable.” Rita, 127 S. Ct. at 2467; see also United States v. Collington, 461 F.3d 805, 808 (6th
Cir. 2006). In light of Rita, defendant’s argument for a presumption of unreasonableness for
sentences outside the Guidelines must be rejected.
Defendant further argues that the “sentence in this case is plainly unreasonable” because a
sentence within the Guidelines range of 46 to 57 months would have been “approximately 6.2 and
7.2 years less than his actual sentence of 11 years.”
Defendant’s argument, while not well
articulated, seems to be that his sentence is unreasonable because of its degree of variance from the
In the post-Booker era, district courts have flexibility to deviate from the Sentencing
Guidelines. “Because the Guidelines are now advisory, the district court has the discretion to vary
from the Guidelines range in order to comply with the mandate that the sentence be ‘sufficient, but
not greater than necessary’ to satisfy the purposes of sentencing set forth in § 3553(a)(2).” United
States v. Keller, — F.3d —, 2007 WL 2254442, at *6 (6th Cir. Aug. 8, 2007) (citing Collington, 461
F.3d at 807-08).
Our circuit had previously endorsed this practice. See, e.g., United States v. Williams, 436 F.3d 706, 708 (6th
Cir. 2006) (“We now join several sister circuits in crediting sentences properly calculated under the Guidelines with a
rebuttable presumption of reasonableness.”).
The fact that defendant is referring to a sentence of 11 years, when his total sentence is for 15 years, suggests
that he is only contesting the sentence for the bank robbery and not the additional sentence of two consecutive additional
24 month terms for the revocations of his supervised release.