JULIA SMITH GIBBONS, Circuit Judge.
David Denny pled guilty to one count of uttering a counterfeited security, in violation of 18 U.S.C. § 513(a). He now appeals his sentence of sixty months' imprisonment on both procedural and substantive grounds. For the reasons explained below, we affirm his sentence.
In late April 2005, Daniel Pate, a Tennessee resident, placed an advertisement in a local newspaper offering his Chevrolet Corvette for sale. Denny, using the fictitious name Tom Williams, contacted Pate and arranged a meeting in order to inspect the car. The two met on April 29, 2005, and after some time, Pate agreed to sell the car to Denny for $12,000. Denny produced a cashier's check for that amount and gave it to Pate as payment. When Pate sought to deposit the cashier's check, he discovered it was fraudulent. He then reported the theft of his vehicle to the local police. Law enforcement eventually identified Denny as being involved in this incident and a string of similar thefts in January 2007. Denny admitted to participating in an automobile theft ring and in the fraudulent buying and selling of twenty-five vehicles in five states.
After being indicted on three counts of uttering a counterfeited security in violation of 18 U.S.C. § 513(a), Denny agreed to plead guilty to one count of uttering a counterfeited security — that involved with the theft of the Corvette — in August 2008. As part of his plea, Denny also admitted to uttering two other counterfeit checks, one for $17,000 and the other for $10,500, in order to steal two cars. The presentence report ("PSR") assessed a total offense level of 13 and a criminal history category VI. The district court, however, eventually found that Denny's criminal history was overstated and reduced the criminal history to a category V; it also reassessed the total offense level and found it to be 12. With these adjustments, the sentencing guidelines recommended a sentence of 27 to 33 months' imprisonment.
At a sentencing hearing in August 2009, however, the district court ultimately imposed a sentence of 60 months' imprisonment. The court explained that it felt the Guidelines did not reflect the seriousness of the crime in this case. The court explained:
After the court notified Denny of the 60-month sentence, defense counsel objected on the grounds that the sentence constituted an upward departure for which the court had given counsel no notice. The district court responded, "As I understand case law, you no longer have to give advance notice of upward departure, because the guidelines are advisory." The government's attorney then interjected to propose that "this is a variance within the discretion [of] the Court under section 3553 as opposed to a departure"; the district court agreed, explaining its decision was "not a departure under the guidelines."
This appeal followed. Because Denny was charged with federal crimes, the district court had jurisdiction pursuant to 18 U.S.C. § 3231. This court's review of a sentence is authorized under 18 U.S.C. § 3742. Additionally, we possess jurisdiction over the district court's final order pursuant to 28 U.S.C. § 1291.
The first issue on appeal is whether the district court's imposition of a sentence higher than that recommended by the Sentencing Guidelines constituted a "departure" or a "variance." Because this is a question of law, we consider the issue de novo.
Under Rule 32(h) of the Federal Rules of Criminal Procedure, a district court must notify the defendant of an intention to depart from the Guidelines.
United States v. Grams, 566 F.3d 683, 686-87 (6th Cir.2009) (per curiam) (citations omitted). Given the similarities between the two procedures, however, it behooves a district court to indicate clearly whether it is "departing" or "varying" when it elects to deviate from the sentencing guidelines. See United States v. Stewart, 628 F.3d 246, 259 (6th Cir.2010) (noting
This case presents two separate issues: (1) whether the district court expressed an intention to apply a variance during oral sentencing, and (2) what significance the Statement of Reasons plays in our review of this question. We address these two issues in turn.
Our examination begins with the proceedings during oral sentencing. See United States v. Penson, 526 F.3d 331, 334 (6th Cir.2008) (noting the "primacy of the oral sentence" when addressing discrepancies in the sentencing record). In support of his argument that the district court departed from the Guidelines, Denny emphasizes that the district court repeatedly used the word "departure" during oral sentencing and never used the word "variance." This court, however, has noted that "no specific magic words are necessary to render a sentence reasonable." United States v. Davis, 458 F.3d 505, 507 (6th Cir.2006). The court's omission of the word "variance" is therefore not conclusive evidence in favor of Denny.
Moreover, the district court clarified its use of the word "departure" while still at the sentencing hearing; it noted that its decision was "not a departure under the guidelines." This reference to a departure outside the Guidelines apparently makes use of older terminology used to describe a variance; though variance is perhaps the more common term today, deviations based on § 3553(a) factors have frequently been termed "non-Guideline departures." See, e.g., United States v. Bridgewater, 606 F.3d 258, 261 n. 1 (6th Cir.2010) (using "non-Guideline departure" and "variance" interchangeably); United States v. Curry, 606 F.3d 323, 328 (6th Cir.2010) (same); United States v. Blackie, 548 F.3d 395, 403 (6th Cir.2008) ("We often refer to Non-Guideline departures as `variances.'"). The court's clarification that the sentence was "not a departure under the guidelines," confirms that district court was acting pursuant to its discretion under § 3553(a).
The variance — departure question ultimately turns on whether the court's deviation from the sentencing guidelines was done pursuant to the factors enumerated in § 3553(a). Section 3553(a) provides that a court shall impose a sentence "sufficient, but not greater than necessary," to comport with the goals of criminal justice, and, to that end, the section enumerates factors for the court to consider during sentencing. These factors include "the seriousness of the offense," the provision of "just punishment for the offense," the protection of the public, and the need to provide adequate restitution to the victims. 18 U.S.C. §§ 3553(a)(2)(A), 3553(a)(2)(C), 3553(a)(7). This court has noted that these sentencing factors provide the district court with a "much broader range of discretionary decisionmaking" than the discretion provided by the Sentencing Guidelines. United States v. Stephens, 549 F.3d 459, 466-67 (6th Cir.2008).
In this case, the district court's central reason for deviating from the Sentencing Guideline was that it considered "the seriousness of that offense [to be] not properly reflected in the guideline calculation." The seriousness of the offense is explicitly a § 3553(a) factor to be considered. Moreover, the court's emphasis on the particularly vulnerable victims in this case — many of whom were retiring and were forced to dip into savings as a result of Denny's fraud — falls within § 3553(a)'s "just punishment" factor. In United States v. Stewart, this court determined that a district
Based on the district court's clarifying language during oral arguments and its clear reference to § 3553(a) factors, the proceedings establish that the court's deviation constituted a variance, not a departure.
Denny also argues that this court should use the Statement of Reasons to clarify any residual ambiguity resulting from the oral proceeding. The Statement of Reasons, according to Denny, clearly demonstrates that the district court imposed an upward departure, as the report "made no mention of a variance, clearly characterized its sentence as an upward departure, and even cited to specific departure provisions under the Guidelines."
We have previously outlined the relationship between oral and written pronouncements of sentences. "`[W]hen an oral sentence conflicts with the written sentence, the oral sentence controls.'" United States v. Penson, 526 F.3d 331, 334 (6th Cir.2008) (quoting United States v. Schultz, 855 F.2d 1217, 1225 (6th Cir. 1988)); see also United States v. Cofield, 233 F.3d 405, 407 (6th Cir.2000). "The reason for the primacy of the oral sentence lies in the fact that a defendant is present only when being sentenced from the bench. Because criminal punishment affects the most fundamental human rights sentencing should be conducted with the judge and defendant facing one another and not in secret." Penson, 526 F.3d at 334 (internal quotation marks, citations, and alterations omitted). Similarly, written documents cannot be used to create ambiguity in the sentence if the oral sentence is clear. See id.
At the same time, this court has accepted that certain written documents can be used to resolve an ambiguity in the oral sentence. In United States v. Penson, for instance, this court held that "[w]hen an orally pronounced sentence is ambiguous... the judgment and commitment order is evidence which may be used to determine the intended sentence." Id.; see also United States v. Schultz, 855 F.2d 1217, 1225 (6th Cir.1988) ("Where there is ambiguity [in the oral sentence], however, courts have usually been able to divine the intent of the sentencing judge." (internal quotation marks omitted)). Yet the court has also recognized that often written judgments and commitment orders will have limited probative value if they are cursory accounts. In United States v. Blackie, for instance, this court found that a written "order [that] simply checked two boxes to indicate its reasons for sentencing outside the guideline system and left blank the section of the order for facts justifying the sentence" lacked "the requisite level of specificity" necessary to resolve ambiguities in the oral transcript. 548 F.3d 395, 401 (6th Cir.2008).
The particular document to which Denny cites — the sealed Statement of Reasons — must be viewed with some caution. This reporting procedure is required under 28 U.S.C. § 994(w)(1)(B), which provides that
28 U.S.C. § 994(w)(1) (2006).
Because it was merely intended to serve a record-keeping function, courts' written statement of reasons have not always been crafted with the same precision that judges heed during the oral sentence.
In this case, the district court checked two boxes on the prepared Statement of Reasons, both in the section entitled "Departure."
Even if we concluded the record from the oral sentencing was ambiguous, therefore, we conclude that the written Statement of Reasons does not give rise to the inference that the district court departed under the Guidelines. The record makes clear that the court intended to vary from the Guidelines range.
Alternatively, Denny argues that the 60-month sentence imposed by the district court was procedurally and substantively unreasonable. This court reviews sentences for both procedural and substantive reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
Procedural unreasonableness may occur when a sentencing court "fail[s] to calculate (or improperly calculat[es]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the [18 U.S.C.] § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range." Gall, 552 U.S. at 51, 128 S.Ct. 586.
Denny puts forward two claims with regard to procedural unreasonableness. The first is that the district court "failed to adequately explain its sentencing decision." The Supreme Court has held that a "sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has reasoned a basis for exercising his own legal decision-making authority." Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). However, this court has emphasized that a district court "need not recite" the § 3553 factors when it imposes a sentence. United
The record clearly indicates that the sentencing judge took Denny's claims under consideration. Indeed, the court found some of his arguments persuasive and adjusted both the offense level and Denny's criminal history according to objections made by Denny to the presentence report. Similarly, the court articulated at both the sentencing hearing and in its statement of reasons the factors that warranted a variance. The record therefore amply indicates the court's decisionmaking process, and Denny's claim that the court failed to adequately explain itself is incorrect.
Denny also argues that the court applied the incorrect standard in calculating his sentence. He claims that the district court committed error by "justif[ying] its sentence as `reasonable' rather than `sufficient, but not greater than necessary.'" Denny claims the court's statement that the "guideline sentence [does not] represent[] a reasonable sentence" evidences the application of the incorrect standard — specifically, the appellate standard of review.
In support of his second procedural claim, Denny cites to this court's opinion in United States v. Wilms, which explained that
495 F.3d 277, 281 (6th Cir.2007) (quoting United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006)). But Denny omits the following sentence in Wilms, namely that "the mere fact that the district court utters the word `reasonableness' or recognizes that we apply a presumption of reasonableness on appeal does not render its sentencing determination procedurally unreasonable." Id. Denny essentially asks this court to find exactly the opposite and hold that the sentencing judge's single reference to reasonableness renders the entire decision invalid. We do not accept this argument. The district court made it clear that its adjustment of Denny's sentence was done pursuant to the factors and standard set forth in § 3553(a), and this court does not require "ritual incantation" of § 3553 to affirm a sentence. United States v. Simmons, 587 F.3d 348, 398 n. 14 (6th Cir.2009). Therefore, we reject Denny's claims that the sentencing was procedurally unreasonable.
"The essence of a substantive-reasonableness claim is whether the length of the sentence is `greater than necessary' to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a)." United States v. Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir.2010). 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." Id. at 633 (internal quotation marks omitted). The court must "take into account the totality of the circumstances,
Denny makes two arguments about substantive unreasonableness. The first is that the district court improperly drew factual conclusions about cars and the particular vulnerability of victims defrauded of their vehicles. The district court did mention that in American society automobiles are "important" and "represent a great investment to people," but this aside during the hearing did not serve as the court's central reasoning. Its emphasis, in contrast, focused on (1) the broader automobile theft ring in which Denny played a central role and (2) the victims' suffering as a result of the theft. There was more than adequate evidence in the record to support both of the district court's points. By Denny's own admission, he was involved in the theft and illegal sale of twenty-five vehicles. Evidence offered by the victims described how they had been forced to dip into savings and delay retirement as a result of receiving the fraudulent checks. The evidence in the record, therefore, amply supports the conclusions drawn by the district court.
Denny's second argument is that the sentence imposed was excessive. In support of this claim, Denny claims that his sentence would have been significantly less had the court imposed a vulnerable victim enhancement under U.S.S.G. § 3A1.1(b), rather than simply imposing a variance.
Denny's argument fails for two reasons. First, his argument confuses the susceptibility of a victim to a crime (which is taken into account under § 3A1.1(b)) with the effects of a crime on a victim. The district court considered the effects of Denny's frauds on the victims given their financial conditions and the substantial asset that a vehicle constitutes for the average American, not whether the victims were particularly susceptible because they were selling cars.
The sentence imposed, therefore, was both procedurally and substantively reasonable.
For the foregoing reasons, we affirm the sentence imposed by the district court.