NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0378n.06
                             Filed: June 26, 2008

                                            No. 06-6461

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellant,             )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE MIDDLE
                                       )                  DISTRICT OF TENNESSEE
WILLIAM HENRY HUGHES,                  )
                                       )                         OPINION
      Defendant-Appellee.              )
_______________________________________)


Before: MOORE, CLAY, and ROGERS, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. A jury found Defendant-Appellee Dr.

William Henry Hughes (“Hughes”) guilty of bank fraud, in violation of 18 U.S.C. § 1344. On

appeal, the government argues that Hughes’s sentence, which consisted of one day of imprisonment,

five years of supervised release, an assessment of $100, and $100,000 of restitution, is substantively

unreasonable because the district judge failed to consider and apply properly the appropriate factors

in reaching a term of imprisonment of only one day. As explained below, we hold that the sentence

is substantively unreasonable, we VACATE the district court’s judgment of sentence, and we

REMAND for resentencing consistent with this opinion.

                                 I. FACTS AND PROCEDURE

A. Factual Background
          This case centers around a physician’s cashing of checks intended for, and made out to, a

clothing company. Hughes, a practicing urologist in the Hermitage, Tennessee area, routinely had

his sole employee retrieve his office mail, including insurance-reimbursement checks. Although the

employee retrieved the insurance checks, Hughes usually deposited the checks in the bank himself.

          Unbeknownst to the employee responsible for retrieving the mail, Hughes maintained another

post-office box in Brentwood, Tennessee. The post-office box located next to Hughes’s Brentwood

box belonged to “Tom James - Oxxford [sic] Clothes - Individual Apparel Group” (“IAG”); the IAG

box received “a considerable number” of checks each day.1 Joint Appendix (“J.A.”) at 79

(Presentence Report (“PSR”) at ¶ 8).

          The events at issue began on August 30, 1999, when Hughes “deposited 29 separate checks

payable to IAG of varying dates up to two months old into his SunTrust account.”2 J.A. at 80 (PSR

at ¶ 10). “According to the Government, it is not known how Hughes came into possession of IAG’s

checks.” J.A. at 81 (PSR at ¶ 22). The checks, each of which was from a men’s clothing store,

totaled $15,452.10. J.A. at 80 (PSR at ¶ 10). “With this deposit, Hughes included one check from

himself for $500 that was placed on top of the stack of deposited checks.” J.A. at 80 (PSR at ¶ 10).

SunTrust accepted Hughes’s deposit to his own account notwithstanding that IAG was the named

payee. Eventually, IAG discovered that its checks were missing and notified SunTrust; SunTrust

traced the checks to Hughes and attempted to contact him. After Hughes failed to return the bank’s




          1
        The facts presented here are largely drawn from the Presentence Report and were not
challenged by Hughes or the government.
          2
              IAG and Hughes both banked with SunTrust Bank (“SunTrust”), and both used the same
branch.

                                                  2
calls, SunTrust took money from Hughes’s account and paid IAG in November 1999; Hughes did

not respond to the removal of the funds from his account.

       On October 7, 1999, Hughes deposited another check that was made out to IAG into his

SunTrust account; this check represented a payment from Saks Fifth Avenue (“Saks”) to IAG in the

amount of $155,794.20. Five days later, Hughes transferred $90,000 of the money to a new savings

account at SunTrust. In April 2000, Hughes told his accountant that the deposits were contributions

to his business (and thus not taxable). In July 2000, the checking account into which the Saks check

had been deposited was closed; we cannot ascertain from the record before us (which does not

include a trial transcript) who closed the account or why it was closed. By August 2000, Hughes’s

active checking account at SunTrust contained only $12,064.46. After determining that the Saks

check had not been received by IAG but had been deposited into Hughes’s checking account,

SunTrust put a hold on Hughes’s active checking account. Ultimately, SunTrust removed $12,000

from Hughes’s checking account in order to reimburse Saks, using the bank’s own funds to pay the

remainder of the missing money owed. Prior to this time, “Hughes spent the money for his own use

and benefit, namely to pay off old debts so he could secure a mortgage loan for his new home.” J.A.

at 80 (PSR at ¶ 14).

       When, in August 2000, a SunTrust investigator approached Hughes about his fraudulent

deposits, Hughes first stated that he may not have made the deposit of the Saks check because his

office employee performed such duties. However, after the investigator explained that the bank had

a surveillance camera picture of Hughes personally making the deposit, Hughes provided a second

explanation: he must have mistaken the check for an insurance-reimbursement check as a result of

his failing to inspect the check when he deposited it. Eventually, SunTrust sued Hughes for the


                                                 3
balance of the funds; he admitted, in a civil deposition in July 2002, to taking the money by mistake

and spending it to pay his debts. Hughes agreed to pay restitution to SunTrust.

       Hughes’s efforts to repay SunTrust, however, included a check that bounced, his failure to

inform SunTrust that he had declared bankruptcy, and a counterfeit check. “On October 26, 2002,

Hughes gave a $500 check with cash back of $250 and a $250 payment on the debt,” but it was

returned for insufficient funds. JA. at 81 (PSR at ¶ 18). Hughes then gave SunTrust a promissory

note for $125,000 on June 2, 2004, and agreed to pay $12,500 each month for ten months; however,

Hughes failed to explain that he had declared bankruptcy on March 31, 2004. In addition, in August

2004, Hughes used computer software, allegedly the Paychex office-payroll software that he used

to pay his employee, to create a $10,000 counterfeit check drawn on a nonexistent account at the

Northern Trust Bank in Chicago.

       Prior to the above events that led to Hughes’s conviction for bank fraud, Hughes had no

criminal history. He served on active duty in the United States Army from 1980 to 1982 and

transferred to the Reserves in 1982, in which he served until 2001. He was reportedly a respected

member of his community. Two former patients testified on his behalf at his sentencing hearing.

One testified that he had known Hughes for four years, and that Hughes had been a patient doctor

who always had time to address his concerns without rushing. J.A. 65-66 (Sent. Hr’g Tr. at 12:19-

13:19). Another, who was a former bank president and fellow church member who had known

Hughes for sixteen or seventeen years, testified that Hughes was not only a very caring physician but

also “the chief architect” of the health program for their church’s membership (including a bulletin

and seminars). J.A. at 69 (Sent. Hr’g Tr. at 9:10). Also, Hughes’s minister, whom he had known

for fifteen years, testified on behalf of Hughes at the sentencing: “[Dr. Hughes] serves as our chief


                                                 4
advisor to our health commission, which has about 30 healthcare workers who are in control of our

health program at the church. In addition to that, he has served—done a lot of workshops and

seminars free, especially on prostate for African-American males . . . and he has done all this free,

and not only for his church but even for the community.” J.A. at 72 (Sent. Hr’g Tr. at 6:2-9).

       Hughes estimated the value of his practice to be one million dollars. The majority of

Hughes’s net worth is the cash value of his life-insurance policy. The most up-to-date information

provided in the Presentence Report indicated that Hughes owed approximately $30,000 in over-due

payments on his child support obligations.

B. Procedural Background

       A grand jury indicted Hughes on November 30, 2005 for one count of bank fraud in violation

of 18 U.S.C. § 1344. Hughes pleaded not guilty and went to trial before a jury. On June 28, 2006,

the jury found Hughes guilty. Given his Criminal History Category of I and offense level of 17, the

calculated United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) range set forth in the

PSR was twenty-four to thirty months of imprisonment and three to five years of supervised release.

On October 25, 2006, the district court sentenced Hughes to one day of imprisonment, five years of

supervised release, an assessment of $100, and $100,000 of restitution to be paid at a minimum

monthly rate of ten percent of Hughes’s gross monthly income.

                     II. SUBSTANTIVE REASONABLENESS REVIEW

A. Standard of Review

       Under Rita v. United States, 551 U.S. —, 

(2007), and Gall v. United States,

552 U.S. —, 

(2007), we review a district court’s sentencing determination for




                                                 5
reasonableness “under a deferential abuse-of-discretion standard.” 

; 

.

B. Analysis

       Booker gave “the district courts discretion in sentencing, in accordance with the § 3553(a)

factors, and reasonableness review is the manner in which the courts of appeals review sentences to

determine if the sentencing courts abused that discretion.” United States v. Liou, 

, 338

(6th Cir. 2007) (citing Rita, — U.S. 

; United States v. Booker, 

,

261-62 (2005)). “A sentence may [be] substantively unreasonable where the district court ‘select[s]

the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent

§ 3553(a) factors, or giv[es] an unreasonable amount of weight to any pertinent factor.’” 

(quoting United States v. Jones, 

, 252 (6th Cir. 2007)). We review, pursuant to the

abuse-of-discretion standard, the substantive reasonableness of the sentence based on “the totality

of the circumstances.” 

.

       The Supreme Court in Gall foreclosed the type of proportionality review that we once applied

to outside-Guidelines sentences. United States v. Klups, 

, 539 (6th Cir. 2008) (quoting

). Gall “reject[ed] . . . an appellate rule that requires ‘extraordinary’

circumstances to justify a sentence outside the Guidelines range . . . [as well as] the use of a rigid

mathematical formula that uses the percentage of a departure as the standard for determining the

strength of the justifications required for a specific sentence.” 

128 S. Ct. at 595).

Under Gall, we “may not apply a presumption of unreasonableness” to sentences outside of the

Guidelines range. 

. However, a district court must give a “‘specific reason’”




                                                   6
for imposing an outside-guidelines or variance sentence. United States v. Vonner, 

, 387

(6th Cir. 2008) (en banc) (quoting 18 U.S.C. § 3553(c)(2)).

       “On abuse of discretion review, [we give] due deference to the [d]istrict [c]ourt’s reasoned

and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.”3 

. Gall instructs us that a district court has not necessarily committed reversible error by

“attach[ing] great weight” to a single factor. 

In addition, we may not reverse the sentence

imposed by the district court simply because we “might reasonably have concluded that a different

sentence was appropriate.” 

Finally, as we recently stated, the “central lesson” to be

learned from the Supreme Court’s recent sentencing decisions is “that district courts have

considerable discretion in this area and thus deserve the benefit of the doubt when we review their

sentences and the reasons given for them.” 

.

       The district court here, after reviewing the § 3553(a) factors, imposed a non-Guidelines (or

variance) sentence. United States v. Cousins, 

, 577 (6th Cir. 2006) (highlighting the

difference between a departure based on Chapter 5 of the Guidelines and a post-Booker “non-

Guidelines” (or “variance”) sentence). As noted above, the district court sentenced Hughes to one

day of imprisonment and five years of supervised release,4 and also required him to pay $100,000


       3
         “Certainly, in considering the § 3553(a) factors in the course of determining ‘that an
outside-Guidelines sentence is warranted,’ the district judge ‘must consider the extent of the
deviation and ensure that the justification is sufficiently compelling to support the degree of the
variance.’” 

(quoting 

). Moreover, we have said that
we apply “not just abuse-of-discretion review to the reasonableness of a sentence but abuse-of-
discretion review to the district court’s determination that there is a legitimate correlation between
the size of the variance and the reasons given for it.” United States v. Grossman, 

, 596
(6th Cir. 2008).
       4
         The difference between supervised release and probation should be noted. Supervised
release “is an order of supervision in addition to any term of imprisonment imposed by the court.”

                                                   7
in restitution to SunTrust. The district court found that Hughes “attempted” to reimburse SunTrust

for years and had “never been able to dig himself out of his financial difficulties.” J.A. at 57 (Sent.

Hr’g Tr. at 21:21-23). The district court considered Hughes’s contribution, as an African-American

urologist, to the African-American males in his community: “The court is very impressed with the

fact that Dr. Hughes is apparently, according to everybody who’s written to me, the only black

urologist in the Nashville area serving an extremely important role in the medical community of

Nashville given the high incidence of prostate cancer among African-American males.” J.A. at 56

(Sent. Hr’g Tr. at 20:5-11). The district court noted that Hughes served his community “in many,

many different ways, providing free screenings, serving on panels, lecturing, [and] serving through

his church in this area.” J.A. at 56 (Sent. Hr’g Tr. at 20:12-15).

        The government argues that several aspects of the district court’s sentencing explanation

require that we vacate Hughes’s sentence and remand for resentencing. With due regard for the

deference that we owe to the sentences imposed by district courts post-Booker and post-Gall, after

reviewing the record in detail we conclude that the district court abused its discretion by giving an

unreasonable amount of weight to one factor and speculating about irrelevant facts related to the

case. This abuse of discretion requires us to vacate Hughes’s sentence and remand this case to the

district court. We explain the rationale behind our decision below.




U.S.S.G. ch. 7, pt. A, introductory cmt. 2(b) (2005) (citing 18 U.S.C. § 3583(a)). Probation is “a
sentence in itself.” 

2(a) (citing 18 U.S.C. § 3561). Because Hughes’s offense required
a period of incarceration, the district court changed its original sentence of five years of “probation,”
J.A. at 58 (Sent. Hr’g Tr. at 22:17), to one day of imprisonment and five years of supervised release.

                                                   8
       1. Factor Given an Unreasonable Amount of Weight

       As explained above, there are two main reasons for vacating Hughes’s sentence and

remanding the case to the district court. First, we conclude that the district court attached an

unreasonable amount of weight to Hughes’s attempts to repay SunTrust when evaluating the nature

of the offense under § 3553(a)(1), seeking to impose a sentence that would reflect the seriousness

of the offense and just punishment under § 3553(a)(2), and seeking to avoid unwarranted sentencing

disparities under § 3553(a)(6). J.A. at 57 (Sent. Hr’g Tr. at 21:21-23). The district court concluded:

“This is not a normal bank fraud case. This is a situation where Dr. Hughes agreed to pay this money

back years ago, attempted to pay it back for years, and just has never been able to dig himself out of

his financial difficulties.” J.A. at 57 (21:19-23). The district court considered the “embarrassment”

and “humiliation” Hughes felt as a result of his prosecution. J.A. at 56 (Sent. Hr’g Tr. at 20:20-21).

Also, it considered the fact that Hughes was under “tremendous financial pressure” at the time that

he committed bank fraud. J.A. at 57 (Sent. Hr’g Tr. at 21:14). Although Hughes argues that the

district court properly considered that he had “failed to make full restitution because he was

financially unable to [do] so, not because he intended to avoid his responsibilities,” Appellee Br. at

21, the record evidence paints a more complex picture.

       Before we address the weight that the district court attached to Hughes’s attempts to repay

the bank, however, we take a moment to highlight an important point. This case requires us to

distinguish between situations in which a district court gives weight to an improper factor, and

situations in which a district court examines a relevant factor but, despite rigorous analysis, gives

unreasonable weight to that factor by failing to examine the full spectrum of information on the

record before it relating to that factor. For example, in United States v. Malone, 

(6th


                                                  9
Cir. 2007), we vacated the defendant’s sentence because the district court improperly considered

what sentence the defendant might receive in a Michigan state court. 

The rationale

underlying Malone can be contrasted with a case such as United States v. Pugh, 

(11th

Cir. 2008). In Pugh, the Eleventh Circuit held that the sentence imposed upon the defendant was

unreasonable because the district court failed to consider several salient facts elicited during two

sentencing hearings, leading the district court to give unreasonable weight to certain relevant factors.

see United States v. Roberson, 

, 436 (7th Cir. 2007) (holding that the

district court did not weigh the factors in a reasonable manner because it “failed to consider their

equivocal character” and failed “to compare them with the aggravating factors”).

        As we examine whether the district court may have given unreasonable weight to a particular

factor relevant to the sentencing determination, we are ever mindful of ensuring that we conduct a

review for reasonableness, not a review that subtly substitutes our judgment as to the proper

weighing of certain factors relevant to sentencing.          Gall made clear that our review for

reasonableness is not a de novo review. 

. We do not have authority to vacate

and remand each time we determine that a district court has not weighed the sentencing

considerations just as we might have done. 

However, despite a district court’s extensive,

first-hand knowledge of a case gleaned through a trial and/or sentencing hearing and the deference

that we are required to give it, there may be occasions, as in Pugh, when the “cold” record before

us clearly indicates that the district court failed to consider the full spectrum of information relevant

to a particular factor in its analysis; such an oversight could produce an unreasonable sentence. Our

role is to bring such an oversight to the attention of the district court through our reasonableness




                                                   10
review so that the district court may address it, and make any appropriate adjustments to the sentence

on remand.

       With the above in mind, we now address the unreasonably great weight that the district court

attached to Hughes’s attempts to repay SunTrust. The district court justified its determination that

this was not a “normal bank fraud case,” J.A. at 57 (Sent. Hr’g Tr. at 21:19), by stating that Hughes

had “agreed to pay this money back,” had “attempted” to do so for years, and had “never been able

to dig himself out of his financial difficulties.” J.A. at 57 (Sent. Hr’g Tr. at 21:20-23). Although

it was appropriate for the district court to consider Hughes’s attempts to repay SunTrust as the court

analyzed the relevant § 3553(a) factors, our review of the record indicates that the district court did

not consider evidence indicating dishonest attempts at repayment by Hughes. As described above,

the record shows that Hughes sent SunTrust a check that bounced, executed a promissory note and

agreed to a payment plan in June 2004 without informing SunTrust that he had declared bankruptcy

two months earlier, and used computer software to create a counterfeit check which he tendered to

SunTrust. The “totality of the circumstances,” 

, reveals that some of Hughes’s

attempts to repay SunTrust involved subterfuge and dishonesty; yet, the district court did not indicate

that it considered the fraudulent nature of these attempts at repayment when crafting a sentence for

Hughes. Therefore, because the record contained evidence of fraudulent actions surrounding

Hughes’s agreement to repay the money and attempts to repay it, it was unreasonable for the district

court to place so much weight in these circumstances on Hughes’s attempts to repay the funds.5

Moreover, because the district court used Hughes’s attempts at repayment as the foundation for its


       5
         If the district court found these dishonest attempts at repayment to be irrelevant for some
reason, the court did not articulate this during sentencing nor was it otherwise apparent from the
record.

                                                  11
conclusion that this was “not a normal bank fraud case,” the district court’s conclusion that Hughes’s

case was unique in comparison to the mine-run of bank fraud cases was also unreasonable. In

addition, because we conclude that the district court’s rationale for viewing this as a unique bank

fraud case is unreasonable, it was unreasonable for the district court to give weight to Hughes’s

embarrassment and humiliation, given that it did not explain why the embarrassment and financial

pressure present in Hughes’s case were different from other bank fraud or similar white-collar crime

cases (or, indeed, from any criminal case). Finally, to the extent that the district court’s decision

implicitly concluded that Hughes had accepted responsibility for his actions6 and taken wholly

legitimate steps toward rectifying the situation, such conclusions were also not grounded in record

evidence, and therefore were unreasonable.

       In sum, by failing to consider all of the facts before it regarding Hughes’s attempts to repay

SunTrust, the district court placed an unreasonable amount of weight on Hughes’s attempts at

repayment when analyzing the § 3553(a) factors.




       6
         Because Hughes did not plead guilty but proceeded to trial, the adjustment for “acceptance
of responsibility” under the Guidelines was not available to him. U.S.S.G. § 3E1.1 cmt. n.2 (2005).
The district court was, however, entitled to consider his acceptance of responsibility when fashioning
a sentence. We note that our reading of the record did not reveal any indication that Hughes
accepted responsibility for his actions. Hughes stated during the allocution that he “made a mistake,
honest mistake,” J.A. at 61 (Sent. Hr’g Tr. at 14:18-19); as reasons for his situation, he cited
insurance companies that failed to “pay on time,” J.A. at 63 (Sent. Hr’g Tr. at 16:3-4), employees
to whom he “didn’t pay close enough attention,” J.A. at 63 (Sent. Hr’g Tr. at 16:7-8), and his ex-
wife, who pursued him for child support payments that he had failed to make, eliminating money
available to pay SunTrust. J.A. at 63-64 (Sent. Hr’g Tr. at 16:23-17:2). Hughes’s troubling
statements implicitly and explicitly place the blame for his criminal actions on others, despite the
fact that he stated that he was “not blaming them.” J.A. at 63 (Sent. Hr’g Tr. at 16:14).

                                                 12
       2. Speculation

       A second aspect of Hughes’s sentencing that warrants vacating his sentence involves

speculation by the district court. The government argues that the district court speculated during the

sentencing about issues such as whether SunTrust would prefer fast repayment over Hughes serving

a prison sentence, J.A. 58 (Sent. Hr’g Tr. at 22:5-10), whether SunTrust had somehow initiated

prosecution of the case at a time of its choosing, J.A. at 55 (Sent. Hr’g Tr. at 19:16-23), and how

Hughes came into possession of the checks involved in the crime. J.A. at 54 (Sent. Hr’g Tr. at

18:19-22). Hughes argues (but does not provide support for the proposition) that the district court

was permitted to make “logical inferences” after viewing the evidence during trial. Appellee Br. at

22. We examine each alleged instance of speculation in turn.

       First, we conclude that the district court inappropriately speculated about SunTrust’s wishes

regarding the sentence to be imposed on Hughes.            After announcing that it did not think

imprisonment was appropriate for Hughes, the district court stated that Hughes would need to begin

making restitution payments to SunTrust. The district court concluded: “I feel that that’s all the

bank really wants anyway.” J.A. at 58 (Sent. Hr’g Tr. at 22:5). As the Ninth Circuit recently held,

however, district courts may not make “unfounded assumptions” when fashioning a sentence for a

defendant. United States v. Romero, No. 07-30147, 

, at *1 (9th Cir. March 11,

2008) (unpublished) (citing 

) (vacating a sentence in part because the district

court speculated about a defendant’s statistical likelihood of becoming a recidivist). Gall requires

that a district court “adequately explain the chosen sentence.” 

. Because the

district court’s statements imply that it considered what sentence the bank might prefer that it impose

and there was no support in the record for the district court’s statement that SunTrust would prefer


                                                  13
a particular type of sentence, we conclude that the district court engaged in unreasonable

speculation.7

        In addition, we conclude that the district court unreasonably speculated about the

government’s reasons for prosecuting Hughes. The district court stated during the sentencing

hearing:

        [W]hat looks to me happened here is that the bank was perfectly content to not lodge
        criminal charges against Dr. Hughes or try to get him charged criminally, and it was
        only when they decided he simply wasn’t paying according to his schedule that
        he—they trotted over to the U.S. Attorney’s Office and got Dr. Hughes indicted, not
        very attractive facts for extracting from Dr. Hughes years in prison.

J.A. at 55 (Sent. Hr’g Tr. at 19:16-23). Speculation regarding aspects of the government’s decision

to pursue a prosecution, absent evidence indicating that such a decision violated the Constitution,

would not be a reasonable factor for the district court to consider when fashioning a sentence. See

United States v. Armstrong, 

, 464 (1996); United States v. LaBonte, 

, 761-

62 (1997). Because the record implies that the district court may have considered the circumstances

surrounding the government’s decision to prosecute Hughes when fashioning his sentence, and there

is no indication that such prosecution was brought in violation of the Constitution, we conclude that

the district court engaged in unreasonable speculation.

        Finally, we conclude that the district court’s recital of hypotheses regarding how Hughes

came into possession of the checks at issue did not render Hughes’s sentence unreasonable. During

sentencing, the district court stated:


        7
         Even if there were support in the record that would allow the district court to infer that
SunTrust preferred that Hughes receive a sentence that would allow him to earn money to pay his
debt as soon as possible (instead of serving a lengthy prison term), the district court did not explain
why the particular desires of this victim should affect the legal analysis necessary for sentencing
Hughes. See generally 18 U.S.C. § 3771 (Crime Victims’ Rights Act) (2006).

                                                  14
       And then the large check, I am still totally puzzled as to how this happened, how this
       check came into his possession.
               I think the government is still puzzled. They had a theory at one point that
       he reached through his post box and grabbed it out of another box. I guess my own
       personal favorite theory is there’s somebody at the post office involved in this whole
       situation, which nobody has ever found out about.
               But the exact way in which Dr. Hughes came into possession of this check or
       these earlier checks to me is still very befuddling and very confusing. And the fact
       remains Dr. Hughes knew that check wasn’t his; he deposited that check.

J.A. at 54-55 (Sent. Hr’g Tr. at 18:19-19:7). Despite the district court’s interest in how Hughes

gained possession of the checks, the record does not indicate that the district court considered its

various hypotheses when fashioning Hughes’s sentence; indeed, the district court explicitly

acknowledged immediately after discussing the hypotheses that it was clear that Hughes knew the

checks were not his (i.e. there was no mistake) and that he deposited the checks. J.A. at 55 (Sent.

Hr’g Tr. at 19:5-6). Thus, the district court’s discussion of how Hughes obtained the checks was

merely an extraneous interlude.

       In sum, we conclude that the district court unreasonably based Hughes’s sentence in part on

speculation about SunTrust’s wishes regarding the sentence to be imposed on Hughes and the timing

of (and reason for) Hughes’s prosecution. We conclude that Hughes’s sentence should be vacated

because of the unreasonable weight placed on Hughes’s attempts at repayment and because of the

district court’s unreasonable speculation regarding SunTrust’s wishes and the timing and rationale

for Hughes’s prosecution.

       3. Consideration of Other Factors

       We now address the district court’s discussion of Hughes’s efforts as an African-American

urologist to aid the community of African-American males regarding urological issues. The district

court stated during the sentencing hearing:


                                                15
       The court is very impressed with the fact that Dr. Hughes is apparently, according to
       everybody who’s written to me, the only black urologist in the Nashville area serving
       an extremely important role in the medical community of Nashville given the high
       incidence of prostate cancer among African-American males.

               That is apparently a specialty of his in terms of treatment and in terms of
       service to the community in many, many different ways, providing free screenings,
       serving on panels, lecturing, serving through his church in this area.

                It appears to the court that Dr. Hughes is performing an extremely important
       role in the African-American community in the healthcare area.

J.A. at 56 (Sent. Hr’g Tr. at 20:5-18).

       The government argues that the district court inappropriately considered Hughes’s race when

determining his sentence. See U.S.S.G. § 5H1.10 (stating that “race, sex, national origin, creed,

religion, and socio-economic status” are “not relevant in the determination of a sentence”) (initial

capitals removed). The government stated in its brief: “While the court was entitled to consider

defendant’s volunteer work in the community, the defendant’s race is an irrelevant and improper

factor to consider in the [sic] determining a sentence.” Gov’t Br. at 16. In response, Hughes argues

that the district court did not choose his sentence because he is African-American; on the contrary,

Hughes argues that “race was merely incidental” to a description of his community work. Appellee

Br. at 13-14.

       As with other aspects of judicial decisionmaking, we must consider the appearance created

by particular judicial actions. Even in a case in which we had full “‘confiden[ce]’” that a district

court had not used a defendant’s race as a basis for determining the appropriate sentence to impose,

United States v. Kaba, 

, 157 (2d Cir. 2007) (quoting United States v. Leung, 

, 586 (2d Cir. 1994)), we must consider the appearance created by the district court’s sentence.

“Because ‘justice must satisfy the appearance of justice,’ even the appearance that the


                                                16
sentence reflects a defendant’s race or nationality will ordinarily require a remand for resentencing.’”

based on the record before us, that the district court did not consider Hughes’s

race when fashioning his sentence. In addition, the record does not indicate that a “reasonable

observer,” 

(quoting 

), would have concluded that

there was even the appearance that Hughes’s race played a role in the district court’s sentencing

determination. Unlike Kaba, the district court in Hughes’s case did not suggest that the sentence was

based on Hughes’s race or national origin, only that it was partly based on his community service.

Our review of the record indicates that the district court continually mentioned Hughes’s race in

conjunction with his community service activities, namely his ability to put other African-American

males at ease, which enabled an under-served population in Tennessee to have access to urological

consultations essential to prostate health. The district court cited the importance of Hughes’s skill-

set for the African-American male population. J.A. at 56 (Sent. Hr’g Tr. at 20:5-18). We agree with

the district court’s assessment that Hughes’s civic activities in general are laudable and surely

deserve to be considered by the district court, as the government conceded. Because our review of

the record indicates that a reasonable observer would not have considered Hughes’s race to have

played a role in his sentence, we conclude that the district court did not consider race in a manner

that warrants vacating Hughes’s sentence.

                                        III. CONCLUSION

       We emphasize that although we conclude, based on the record before us, that the district

court abused its discretion in imposing a sentence of only one day of incarceration, we do not hold

that such a sentence is necessarily substantively unreasonable. However, because the district court


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placed an unreasonable amount of weight on Hughes’s attempts to repay SunTrust, and unreasonably

speculated about the timing of the prosecution and SunTrust’s desire for the court to impose a

particular sentence, we conclude that Hughes’s sentence is substantively unreasonable. Therefore,

we VACATE Hughes’s sentence and REMAND this case to the district court for resentencing in

accordance with our opinion.




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       ROGERS, concurring. I concur in the majority opinion. I do have a concern that the district

court’s statements could be read to indicate that the district court impermissibly took race into

account in this case. However, the case is being remanded to the district court in any event, and we

have read the record to indicate that the district court instead mentioned defendant’s race only

incidentally in discussing the defendant’s efforts to help a medically under-served population in

Tennessee. The district court on remand is of course bound to limit its consideration of that factor

to the way that we have read it.




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