United States v. Smith

Court Case Details
Court Case Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0415p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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TATES OF

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Plaintiff-Appellee,

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No. 06-5681

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ONALD

USSELL

MITH

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Defendant-Appellant.

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Appeal from the United States District Court

for the Eastern District of Tennessee of Chattanooga.

No. 05-00047—R. Allan Edgar, District Judge.

Argued: August 21, 2007

Decided and Filed: October 11, 2007

*

Before: COLE and GRIFFIN, Circuit Judges; WATSON, District Judge.

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COUNSEL

ARGUED: Robert D. Philyaw, LAW OFFICE OF ROBERT D. PHILYAW, Signal Mountain,
Tennessee, for Appellant. Christopher D. Poole, ASSISTANT UNITED STATES ATTORNEY,
Chattanooga, Tennessee, for Appellee. ON BRIEF: Robert D. Philyaw, LAW OFFICE OF
ROBERT D. PHILYAW, Signal Mountain, Tennessee, for Appellant. Christopher D. Poole,
ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee.

GRIFFIN, J., delivered the opinion of the court, in which WATSON, D. J., joined. COLE,

J. (pp. 9-12), delivered a separate dissenting opinion.

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OPINION

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GRIFFIN, Circuit Judge. Defendant Ronald Russell Smith pleaded guilty to one count of

bank robbery in violation of 18 U.S.C. § 2113(a). After noting that Smith committed the robbery
while on supervised release for two other federal felonies, had 22 prior state convictions, and
continued to commit crimes while in custody, the district court sentenced him to a term of 132

*

The Honorable Michael H. Watson, United States District Judge for the Southern District of Ohio, sitting by

designation.

1

No. 06-5681

United States v. Smith

Page 2

months of incarceration. The district court considered the advisory Sentencing Guideline range of
46 to 57 months, but concluded that a 132-month sentence was warranted because of defendant’s
extraordinary criminal history and exceptional danger to public safety. Defendant now appeals his
sentence as being unreasonable. For the reasons set forth below, we affirm Smith’s sentence. In
doing so, we hold that defendant’s above-the-Guidelines sentence is both procedurally and
substantively reasonable, and thus the district court did not abuse its sentencing discretion.

I.

The facts leading up to defendant’s guilty plea for bank robbery are undisputed. On

January 12, 2005, defendant entered a branch of Suntrust Bank in Cleveland, Tennessee and gave
the teller a note that read, “Give me all your 100s, 50s, and 20s.” Defendant was unarmed, not
wearing a disguise, and did not make an express threat. The teller complied with the request, gave
defendant all the cash from her drawer, and defendant left with $5,132. Surveillance photographs
were distributed to the news media, and a U.S. probation officer recognized defendant as one of his
supervised releasees. The probation officer reported defendant’s identity to the FBI and warrants
were issued for his arrest.

Defendant fled the state but was apprehended three days later in Arkansas after he crashed

a stolen car into a ditch while fleeing from an Arkansas police officer. After being advised of his
rights, defendant admitted to stealing the car, robbing the bank, and stealing the license tag found
on the car. A small amount of marijuana was also found in the car. Defendant pleaded guilty to one
count of bank robbery in violation of 18 U.S.C. § 2113(a). There was no plea agreement.

The district court held a sentencing hearing on May 2, 2006, during which defendant argued

for leniency. He claimed, through his attorney, that he had reached a turning point in his life, and
his undisguised and unarmed bank robbery was a cry for help. In response, the United States noted
that defendant has committed other crimes while in custody and argued that “I don’t think he needs
to be getting out of custody at all.” The United States asked for a sentence “towards the statutory
maximum.”

1

In response, the Honorable R. Allen Edgar stated:

Well, the Court has considered this, and the Court has decided that, has considered
the guidelines, but this sentence will be outside of the guideline range under the
authority of and flexibility granted to this Court and other trial courts pursuant to the
Booker case from the United States Supreme Court.

This defendant has three prior federal convictions, which I think is a record for me
here. And I’ve been doing this 21 years. He has 22 prior state convictions that are
in the PSR, and probably many more or several more that he’s already indicated
here. And as [the United States] points out, many of these are not counted in the
sentencing guidelines. So, the criminal history score specified by the guidelines of
IV does not really and truly represent the defendant’s criminal behavior.

The defendant has no stable personal history. He’s 58 years old. And best I can tell
from the presentence report, he’s never been employed. He does have a long-
standing substance abuse problem that won’t go away. He continues to commit
crimes without let-up, both in and out of custody. And he is a threat to public safety
and the public needs protection from Mr. Smith unfortunately. And it does appear
that the defendant is just one of those people who needs to be incarcerated. I mean,
he, frankly, is just not capable of functioning on the outside.

1

The statutory maximum term of incarceration for bank robbery is twenty years. 18 U.S.C. § 2113(a).

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So, pursuant to the Sentencing Reform Act of 1984, it’s the judgment of this Court
on Count 1 that the defendant is hereby committed to the custody of the Bureau of
Prisons to be imprisoned for a term of 132 months.

The district court also ordered defendant to pay $5,132 in restitution, a $100 special assessment, and
serve three years of supervised release. Immediately after pronouncing the sentence, the district
court held a hearing regarding revocation of defendant’s supervised release.

At the revocation hearing, defendant was accused of violating the terms of his supervised

release by committing the bank robbery, leaving the judicial district without permission from his
probation officer, and illegally possessing a controlled substance. Through his attorney, defendant
admitted that “there is no question that he violated the conditions of his supervised release.”
Nevertheless, he asked for less than the two-year statutory maximum on each of the two violations
of his supervised release, and asked that they be served concurrently, but consecutive to the sentence
for bank robbery. The court instead sentenced defendant to 24 months on each of the two counts,
each to be served consecutively. The 132-month sentence, combined with the two consecutive 24-
month sentences, result in a total sentence of 180 months (15 years).

Defendant urges the court to vacate or reduce his sentence and remand for resentencing,

2

claiming that his sentence is “wholly unreasonable under the circumstances of this case.”

We have

held that a reasonableness review, in the sentencing context, involves both procedural and
substantive components. United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2006). Defendant
challenges both the procedural and substantive reasonableness of his sentence.

II.

When reviewing a sentence for reasonableness, an appellate court must consider more than

merely the length of the sentence. Webb, 403 F.3d at 383; see also United States v. Booker, 543
U.S. 220, 245-46 (2005). In order for a sentence to be affirmed as procedurally reasonable, the
reviewing court must ensure that the sentencing judge weighed the appropriate considerations in
determining the sentence. Specifically, the sentencing judge must have appreciated the advisory
nature of the Guidelines, properly calculated the Guidelines range, and considered the factors listed
in 18 U.S.C. § 3553(a). United States v. Davis, 458 F.3d 491, 495 (6th Cir. 2006).

Defendant argues that the sentence is procedurally unreasonable for two reasons: (1) the

district court rejected his argument that his sentence should be in the low range as determined by
the Guidelines without providing an adequate explanation, and (2) the district court did not discuss
the § 3553(a) factors, but simply declared that the sentence would be outside of the Guidelines
range.

Defendant objects to the district court’s explanation of the sentence, stating in his brief that

“Defendant argued that his sentence should be at the low end of the Guideline range, but the record
is somewhat vague as to the judge’s reasons for rejecting that argument and sentencing the
Defendant to a sentence two times that of the range.” Defendant then cites our decision in United
States v. Richardson
, 437 F.3d 550, 554 (6th Cir. 2006), for the proposition that the district court
must consider a defendant’s argument regarding sentencing and explain its reasons for rejecting it.

2

Throughout his brief, defendant repeatedly asks us to “remand this case for re-sentencing in light of United

States v. Booker, 125 S. Ct. 738 (2005).” The United States Supreme Court issued its opinion in Booker prior to the
sentencing hearing – the district judge relied on it by name during the hearing. Presumably, by asking us to remand in
light of Booker, defendant is claiming that the sentence is unreasonable, as opposed to claiming that the district court
somehow thought that the sentencing guidelines were mandatory, as they were prior to Booker.

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In Richardson, we stated that when “a defendant raises a particular argument in seeking a

lower sentence, the record must reflect both that the district judge considered the defendant’s
argument and that the judge explained the basis for rejecting it. This assures not only that the
defendant can understand the basis for the particular sentence but also that the reviewing court can
intelligently determine whether the specific sentence is indeed reasonable.” Richardson, 437 F.3d
at 554. The record shows that the district court did consider defendant’s argument that he had
reached a turning point in life. After defendant’s attorney suggested that defendant had reached a
stage in life in which he decided to accept full responsibility for his actions, the court reminded
counsel that defendant had recently committed crimes while in custody. This dialogue shows that
the district court considered defendant’s argument but disagreed with the suggestion that defendant
had changed.

Defendant further argues that the sentence is procedurally unreasonable because “[i]n the

present case, the district court never discussed § 3553(a) or its factors . . . .” However, by enacting
18 U.S.C. § 3553(a), Congress directed district courts to consider the listed factors when
determining sentences. This statutory command is an insistence upon deliberation, not a formulaic
requirement. When reviewing a district court’s consideration of the § 3553(a) factors, we have
never required “the ‘ritual incantation’ of the factors to affirm a sentence.” United States v. Cage,
458 F.3d 537, 543 (6th Cir. 2006) (quoting United States v. Johnson, 403 F.3d 813, 816 (6th Cir.
2005)). To hold otherwise when the record shows adequate proof of deliberation would effectively
insert an unnecessary insistence upon formalism into the statute. Explicit reference to the § 3553(a)
factors is perhaps the easiest way for the district court to demonstrate that it has considered the
factors, but such recitation is not required by statute or by this circuit’s opinions. United States v.
Barton
, 455 F.3d 649, 659 (6th Cir. 2006); United States v. Till, 434 F.3d 880, 887 (6th Cir. 2006).
As we stated in Till, 434 F.3d at 887:

[We do not require] the formality of mentioning the magic words “§ 3553(a) factors”
when imposing identical alternative sentences. We do not require, consistent with
[United States v.] Chandler[, 419 F.3d 484 (6th Cir. 2005)] and [United States v.]
Beck[, 157 Fed. App’x 784 (6th Cir. 2005)], that sentencing judges must offer some
measure of reasoning when imposing sentences under the advisory-only Guidelines.
However, we decline to require a special incantation that includes the phrase
“§ 3553(a) factors.”

“While a district court’s failure to address each argument [of the defendant] head-on will not

lead to automatic vacatur, we will vacate a sentence if the ‘context and the record’ do not ‘make
clear’ the court’s reasoning. And, of course, a thorough explanation is the most reliable way for a
district court to make clear its reasons supporting a given sentence.” United States v. Liou, 491 F.3d
334, 339 n.4, (6th Cir. 2007) (quoting Rita v. United States, 551 U.S. —, 127 S. Ct. 2456, 2469
(2007)) (internal citations omitted).

In the present case, although the district court did not expressly reference 18 U.S.C.

§ 3553(a) in imposing defendant’s sentence, the record shows that it considered the § 3553(a) factors
and defendant’s arguments. The district court stated that it had reviewed the Guidelines but
determined that the appropriate sentence called for an upwards variance from the Guidelines. The
district court considered defendant’s criminal history, stating that his three federal convictions are
the most that the judge has seen in his 21 years on the bench, and noted that the presentencing report
chronicled defendant’s 22 state convictions. The sentencing judge referred to defendant’s “long-
standing substance abuse problem that won’t go away,” and emphasized that defendant “continues
to commit crimes without let-up, both in and out of custody.” These factors led the district court to
conclude that defendant “is a threat to public safety and the public needs protection from [him].”
The district court considered defendant’s sentencing arguments, and the § 3553(a) factors, such as
the nature and circumstances of the offense and the history and characteristics of the offender; the

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Page 5

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.

III.

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.

3

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.”

4

Defendant’s argument, while not well

articulated, seems to be that his sentence is unreasonable because of its degree of variance from the
Guidelines range.

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).

3

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.”).

4

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.

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Although the sentencing court may deviate from the Guidelines range, “when the district

court independently chooses to deviate from the advisory guidelines range (whether above or below
it), we apply a form of proportionality review.” Davis, 458 F.3d at 496. “[T]he farther the judge’s
sentence departs from the guidelines sentence . . . the more compelling the justification based on
factors in section 3553(a) must be.” Id. at 496 (quoting United States v. Dean, 414 F.3d 725, 729
(7th Cir. 2005)) (internal quotation marks omitted).

5

Modern-day sentencing should be guided by “the principle of proportionality, which requires

sentences imposed by the trial court to be proportionate to the seriousness of the circumstances
surrounding the offense and the offender.” People v. Milbourn, 461 N.W.2d 1, 3 (Mich. 1990). See
also Weems v. United States
, 217 U.S. 349, 367 (1910), “[I]t is a precept of justice that punishment
for [the] crime should be graduated and proportioned to [the] offense.” While the calculations of
the Sentencing Guidelines provide a sentence range that Congress and the Sentencing Commission
deem reasonable in view of the Guideline factors, for an individualized, outside-the-Guidelines
sentence to be reasonable, it must be proportionate to the seriousness of the circumstances of the
offense and offender, and “sufficient, but not greater than necessary, to comply with the purposes
set forth by [§ 3553(a)(2).]” See e.g. Davis, 458 F.3d at 496.

Here, the district court significantly deviated from the Guidelines range; the Guidelines

recommended a sentence of between 46 and 57 months for the bank robbery, but the district court
instead sentenced defendant to 132 months. In doing so, the district court expressed its opinion that
the highest Criminal History Category of the Sentencing Guidelines fails to “really and truly
represent the defendant’s criminal behavior.” The district court thoughtfully considered defendant’s
criminal history and noted that he had never encountered a defendant with as many federal
convictions as Smith. Furthermore, the sentencing judge recognized defendant’s continuing danger
to the public, emphasizing that as a habitual criminal, defendant “continues to commit crimes
without let-up, both in and out of custody.” Defendant’s sentence was a significant variance from
the Guidelines, but the district court provided an equally significant justification for the deviation.

Following our de novo review for reasonableness, we conclude that defendant’s outside-the-

Guidelines sentence of 132-months incarceration is proportionate to the offense and the offender,
and sufficient, but not greater than necessary, to comply with the purposes of § 3553(a)(2). The
offense of bank robbery, 18 U.S.C. § 2113(a), is punishable by a maximum term of incarceration
of 20 years (240 months). Defendant committed the crime without a weapon and did not make an
express threat of violence. However, in the aftermath of the robbery, he fled from Cleveland,
Tennessee, to Russellville, Arkansas. In the process, he stole an automobile, a license plate from
another vehicle, fled from the police in a car chase, and eventually crashed his stolen car in a ditch.
Following his apprehension, a small amount of marijuana was discovered in the stolen car.

At the time of the bank robbery, defendant was on supervised release for federal convictions

of wire fraud (8 counts) and conspiracy to commit wire fraud committed while in federal prison.
Defendant started his known criminal career at the age of 17. His state court convictions include:

6

joyriding (3/30/66); joyriding (4/29/66); attempt to commit a felony [escape] (7/01/66); forgery
(11/04/67); attempt to commit a felony [forged check] (2/23/68); felonious escape from workhouse
(5/14/68); larceny from a person (11/12/72); armed robbery (11/18/72); felonious escape from jail
(10/12/73); passing forged papers (6/28/77); passing forged papers (7/12/77); burglary (2 counts),

5

The Supreme Court is scheduled to review this issue this Term in United States v. Gall, No. 06-7949. Rita,

127 S. Ct. at 2467.

6

At the revocation and sentencing proceeding, defense counsel stated that defendant had no objections to the

presentence report. The list of defendant’s convictions is taken from the presentence report. The dates of arrest are
specified.

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Page 7

larceny, felony passing a forged instrument (6 counts) (9/28/78); escape (11/23/79); reckless driving
and violation of the state driving license law (4/29/82); felony obtaining controlled substance
(5/12/82); burglary, 1st degree [home invasion] (5/24/82); false pretenses [extorting $500 from
another state prison inmate] (11/14/83); bribery and obtaining property under false pretenses
[attempt to take $5,000 from an undercover agent posing to be the father-in-law of another state
prison inmate] (6/04/84); obtaining property under false pretenses [obtaining $250 from another
state prison inmate] (11/06/84); possession of marijuana (7/09/87); and grand larceny (8/29/87). In
addition, defendant has two additional federal convictions: interstate transportation of stolen motor
vehicles (10/31/68); and assault on government property [stabbing another inmate] (2/12/70).

While the majority of defendant’s crimes did not involve actual violence, it is the non-violent

nature of his previous crimes that allowed defendant to gain release from prison. The length of
incarceration for his previous crimes (substantially less than his current 132 month sentence), was
obviously not sufficient to comply with the purposes of § 3553(a)(2).

7

Our court has affirmed upward variances from the Sentencing Guidelines in previous

decisions. See, e.g., United States v. Ragland, 226 F. App’x 507, 511 (6th Cir. 2007); United States
v. Williams
, 214 F. App’x 552, 556 (6th Cir. 2007); United States v. Wells, 473 F.3d 640, 644-45
(6th Cir. 2007); and United States v. Barton, 455 F.3d 649, 658-60 (6th Cir. 2006), cert. denied 127
S. Ct. 748 (2006). In Barton, 455 F.3d at 659-60, we affirmed a variance based on the district
court’s reasoning that the defendant was an exceptionally “dangerous person” who “needs to be
removed from society.”

In Williams, 214 F. App’x at 556, we held that the sentencing judge articulated “compelling

reasons” for his substantial upward variance from the Guidelines:

Having carefully reviewed the transcripts of the supervised release revocation
hearing and both sentencing hearings, we remain unpersuaded that the sentence
imposed by the district court is substantively unreasonable. The district court did not
base the sentence on any impermissible factor. Nor has defendant demonstrated that
the district court placed unreasonable weight on any one sentencing factor. The
district court’s upward variance from the advisory guidelines range is substantial.
Yet, in light of defendant’s evident continuing propensity for violence, the variance
is premised on compelling reasons
. The district court’s explanation of its reasoning,
though succinct, demonstrates appropriate consideration of defendant’s history and
characteristics, the need for just punishment, the need for deterrence, the need to
protect the public, and the need to provide defendant with correctional treatment.
See 18 U.S.C. § 3553(a).

(Emphasis added.)

In the present case, we agree with the district court’s well-reasoned explanation for its above-

the-Guidelines sentence. Defendant’s extraordinary criminal history and exceptional danger to
public safety are substantial and compelling reasons justifying the degree of deviation from the
advisory Sentencing Guidelines. Moreover, defendant’s sentence is proportionate to the offense and
the offender, and sufficient, but not greater than necessary, to comply with the purposes of

7

18 U.S.C. § 3553(a)(2) provides: “(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.”

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Page 8

§ 3553(a)(2). For these reasons, we hold that defendant’s sentence is substantially reasonable, and
the district court did not abuse its sentencing discretion.

Affirmed.

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Page 9

_______________

DISSENT

_______________

R. GUY COLE, JR., Circuit Judge, dissenting. I disagree with the majority’s conclusion that

Smith’s sentence is both procedurally and substantively reasonable. While the advisory Sentencing
Guidelines prescribed a range of 46 to 57 months of incarceration for Smith’s crime, the district
court issued a 132-month sentence. In United States v. Davis, this Court characterized a 99.89%
downward deviation from the Guidelines as an “extraordinary variance.” 458 F.3d 491, 496 (6th
Cir. 2006). In the present case, we now face a deviation even greater in magnitude in the opposite
direction, approximately 158 percent.

1

Thus, it is irrefutable that the case at hand also constitutes

“an extraordinary variance.” As in Davis, the question before us is “whether extraordinary
circumstances justify the full amount of the variance.” Id. at 496-97. For the reasons set forth
below, I believe the record fails to evidence such extraordinary circumstances.

A.

18 U.S.C. section 3553(a) instructs district courts to “impose a sentence sufficient, but not

greater than necessary, to comply with the purposes set forth in the provision.” Compliance with
section 3553(a) is mandatory. Specifically, section 3553(a) mandates that the district court consider:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense; to protect the public from further crimes of the
defendant; and 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 appropriate advisory guideline range; (5) any other 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.

Once a district court imposes a sentence it deems appropriate under the factors delineated

above, we must then consider whether the district court’s sentence is a reasonable application of
section 3553(a). See United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005) (noting that “when
a defendant challenges a district court’s sentencing determination, we are instructed to determine
“whether [the] sentence is unreasonable.””) (quoting United States v. Booker, 543 U.S. 220, 261
(2005)). As the majority correctly explains, our review of sentencing decisions for reasonableness
contains both procedural and substantive components. In assessing the procedural reasonableness
of a sentence,

2

we examine the record to determine whether the district judge properly

acknowledged the advisory nature of the Guidelines, considered the applicable Guidelines range,
and weighed the factors set forth above and enumerated in section 3553(a). Davis, 458 F.3d at 495.
Additionally, when a defendant raises a particular argument, procedural reasonableness requires the
record to reflect “both that the district judge considered the defendant’s argument and that the judge
explained the basis for rejecting it.” United States v. Richardson, 437 F. 3d 550, 554 (6th Cir. 2006)
(emphasis added).

1

This number was calculated by averaging the percent change between the actual 132-month sentence and the

lower end of the Guidelines range, 46 months, and the percent change between the actual 132-month sentence and the
upper end of the Guidelines range, 57 months.

2

This Court recently took up the issue of procedural reasonableness under en banc review in United States v.

Vonner, 05-5295 (heard en banc September 12, 2007). Since the opinion has not yet been issued, I draw on the existing
standards of procedural reasonableness in setting forth my analysis.

No. 06-5681

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Page 10

In this case, the district court failed to review sufficiently on the record the section 3553(a)

factors. While the district court properly acknowledged the advisory nature of the Guidelines and
considered the applicable Guidelines range, the record does not reflect that the court weighed, as
required, the factors set forth in section 3553(a). The court did weigh defendants’ lengthy criminal
history, lack of employment, longstanding substance abuse problem, and his commission of the
instant crime while on supervised release; however, the record is silent on the district court’s
consideration of the nature and circumstances of this offense [§ 3553(a)(1)]; the need for the
sentence to reflect the seriousness of the offense [§ 3553(a)(2)]; and the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of similar
conduct [§ 3553(a)(6)]. While this Court has “‘never required ‘ritual incantation’ of the [section
3553(a)] factors to affirm a sentence’” and has indicated that “the district court need not explicitly
reference each of the [section] 3553(a) factors in its sentencing determination,” I still find the district
court’s inattention to the three factors above, especially the nature and circumstance of Smith’s
offense and the seriousness of the offense, precludes meaningful appellate review. United States
v. Cage
, 458 F.3d 537, 543 (quoting United States v. Kirby, 418 F.3d 621, 626 (6th Cir. 2005));
United States v. Jones, 445 F.3d 865, 869 (6th Cir. 2006).

Additionally, while the district court heard Smith’s argument that his unarmed robbery of

a bank was a plea for help and that he had reached a turning point in life, the record is silent as to
whether the district court took these arguments into consideration in sentencing Smith well above
the top of the Guidelines. The majority contends that the district court fully considered and rejected
Smith’s argument when the judge noted that Smith had committed this crime while on supervised
release. Majority Op. at 4. Even if we were to assume that the court’s colloquy evidenced its
consideration of Smith’s argument, the record is nevertheless devoid of the court’s basis for rejecting
it. At a minimum, the court should explain its reasons for doubting Smith’s credibility. See
generally Rita v. United States
, 127 S.Ct. 2456, 2468 (2007) (stating that “[w]here the defendant or
prosecutor presents nonfrivolous reasons for imposing a different sentence . . . the judge will
normally go further and explain why he has rejected those arguments”). All the court said is, “All
right. Well, the Court has considered this.” (JA 42). Thus, even though the court may have
complied with Richardson’s first dictate–that the judge consider the defendant’s non-frivolous
argument, the court failed to comport with Richardson’s second dictate–that the judge set forth a
basis for rejecting the argument. Consequently, I find the 132-month sentence procedurally
unreasonable.

B.

In addition, I part ways with the majority’s conclusion that Smith’s sentence was

substantively reasonable. As we have noted, “[e]ven if a sentence is calculated properly, i.e., the
Guidelines were properly applied and the district court clearly considered the [section] 3553(a)
factors and explained its reasoning, a sentence can yet be [substantively] unreasonable.” United
States v. Husein
, 478 F.3d 318, 332 (6th Cir. 2007) (quoting United States v. Cage, 451 F.3d 585,
591 (10th Cir. 2006)). More specifically, a substantively unreasonable sentence arises when the
district court “ “select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors,
fail[s] to consider pertinent [section] 3553(a) factors, or giv[es] an unreasonable amount of weight
to any pertinent factor.”” United States v. Liou, 491 F.3d 334, 337 (6th Cir. 2007) (quoting
Richardson, 437 F.3d at 553).

No. 06-5681

United States v. Smith

Page 11

In my view, the instant sentence falls short on the penultimate prong of this reasonableness

analysis; that is, the district court failed to consider on record, among other factors, the “nature and
circumstances of the offense,” the first-listed factor under section 3553(a)(1). See 18 U.S.C.
§ 3553(a)(1) (authorizing the sentencing court to account for “the nature and circumstances of the
offense and the history and characteristics of the defendant”). In arriving at a 132-month sentence,
the district court thoroughly considered Smith’s extensive criminal history, including his “three prior
federal convictions” and at least “22 prior state convictions.” (JA 42). Taken together, the court
believed that these convictions supported a score considerably above that recommended by the
Guidelines. Id. Likewise, the majority replicates the district court’s unilateral focus on the
defendant’s criminal history, and recites the record of defendants’ prior federal and state
convictions. Majority Op. at 6-7.

What is absent from the district court’s analysis, however, is a consideration of the nature

and circumstances of the specific crime for which Smith was being sentenced, namely bank robbery.
While not discounting the severity and extent of defendant’s many prior encounters with the law,
a sentencing court must not lose sight of the particular offense at issue. While defendant’s criminal
history is undoubtedly relevant to the sentencing decision, the defendant has already received
punishment for his prior crimes. Therefore, the nature of the conviction at issue is paramount.

According to the undisputed facts, Smith walked into a small branch bank during the middle

of the morning without any weapons, display of force, or disguise, and absconded with the sum of
$5,132. The record simply does not evidence any consideration by the district court of the details
of the particular crime; the focus is almost entirely on the severity of Smith’s criminal past.
Although section 3553(a)(1) authorizes a district court to account for the “history and characteristics
of the defendant,” it also requires the court to balance this factor against “the nature and
circumstances of the offense.” 18 U.S.C. § 3553(a)(1). The district court’s near singular focus on
Smith’s criminal history thus resulted in an inadequate focus on the unarmed bank robbery.

In affirming Smith’s sentence as substantively reasonable, the majority relies on a line of

cases in which this Court has previously affirmed above-the-Guidelines sentences. Majority Op.
at 7. In most of these cases, however, the crimes directly at issue were of a violent nature. In United
States v. Williams
, for example, this Court affirmed an upward departure from the Guidelines when
the defendant violated his supervised release by allegedly committing kidnapping, assault, and
battery. 21 F. App’x 552 (6th Cir. 2007). The central factor the Court pointed to in finding the
heightened sentence reasonable was “defendant’s evident continuing propensity for violence.” Id.
at 556 (emphasis added). Likewise, in affirming the upward departure in United States v. Wells, this
Court focused on the “lengthy history of escalating violent behavior by defendant in his relatively
short life.” 473 F.3d 640, 644 (6th Cir. 2007) (emphasis added).

The present case is readily distinguishable, however, because Smith’s bank robbery lacked

any indicia of violence. Smith neither carried a weapon nor relied on any violent measures in
committing the robbery. The cases the majority marshals thus make clear that above-the-Guidelines
sentences are justifiable in certain situations, especially those involving violent crimes; what these
cases do not support, however, is that an above-the-Guidelines sentence is substantively reasonable
in the case of a non-violent offense where the variance is of this magnitude and the explanation
therefore is scant.

Taken together, these reasons suggest to me that, in affirming the district court’s sentence

as reasonable, the majority has departed from our central task in reviewing sentences–to ensure ‘“a
sentence [is] sufficient, but not greater than necessary, to comply with the purposes set forth in’”
section 3553(a). See Davis, 458 F.3d at 495 (quoting § 3553(a)). Under our “proportionality
review,” the record simply does not permit this Court to conduct a meaningful review as to whether
an upward variance of 158 percent is proportionate to the instant offense or offender. Had there

No. 06-5681

United States v. Smith

Page 12

been a fuller explanation from the characteristically thorough, experienced, and competent judge
who sentenced the defendant–a defendant who clearly has an extensive criminal past–then my
review might have come to a different result.

For these reasons, I respectfully dissent.

Referenced Cases