Filed: Mar. 24, 2008
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 05-10200 v. D.C. No. ALPHONSO KINZAR CARTY, CR-03-01135-RGS Defendant-Appellant. UNITED STATES OF AMERICA, No. 05-30120 Plaintiff-Appellee, D.C. No. v. CR-02-00079- JUAN ANTONIO ZAVALA, 12-BLW Defendant-Appellant. OPINION Appeal from the United States District Court for the District of Arizona Roger G. Strand, District Judge, Presiding Appeal from the United States D
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 05-10200 v. D.C. No. ALPHONSO KINZAR CARTY, CR-03-01135-RGS Defendant-Appellant. UNITED STATES OF AMERICA, No. 05-30120 Plaintiff-Appellee, D.C. No. v. CR-02-00079- JUAN ANTONIO ZAVALA, 12-BLW Defendant-Appellant. OPINION Appeal from the United States District Court for the District of Arizona Roger G. Strand, District Judge, Presiding Appeal from the United States Di..
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 05-10200
v. D.C. No.
ALPHONSO KINZAR CARTY, CR-03-01135-RGS
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 05-30120
Plaintiff-Appellee, D.C. No.
v. CR-02-00079-
JUAN ANTONIO ZAVALA, 12-BLW
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Arizona
Roger G. Strand, District Judge, Presiding
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted October 6, 2006
Submission Vacated December 6, 2006
Resubmitted March 24, 2008
San Francisco, California
Filed March 24, 2008
2833
2834 UNITED STATES v. CARTY
Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Stephen Reinhardt, Pamela Ann Rymer, Andrew J. Kleinfeld,
Sidney R. Thomas, Barry G. Silverman,
M. Margaret McKeown, Kim McLane Wardlaw,
Ronald M. Gould, Richard A. Paez, Marsha S. Berzon,
Richard C. Tallman, Jay S. Bybee, and Carlos T. Bea,
Circuit Judges.
Opinion by Judge Rymer;
Concurrence by Chief Judge Kozinski;
Concurrence by Judge Silverman
UNITED STATES v. CARTY 2837
COUNSEL
Jeffrey T. Green, Assistant Federal Public Defender, Phoenix,
Arizona (argued); Milagros A. Cisneros, Assistant Federal
Public Defender, Phoenix, Arizona, for defendant-appellant
Alphonso Kinzar Carty.
Dennis M. Charney, Eagle, Idaho, for defendant-appellant
Juan Antonio Zavala.
Michael R. Dreeben, Department of Justice, Washington,
D.C, for the plaintiff-appellee.
OPINION
RYMER, Circuit Judge:
We ordered rehearing en banc in these cases to clarify our
sentencing law in the wake of United States v. Booker, 543
U.S. 220 (2005).1 Events overtook us, however, when the
United States Supreme Court granted certiorari in Claiborne
v. United States and Rita v. United States. As the issues were
similar to those in our appeals, we deferred submission pend-
ing the Court’s decisions.
The Court rendered its opinion in Rita on June 21, 2007,
holding that a court of appeals may presume that the sentence
is reasonable when a district judge’s discretionary decision
accords with the sentence the United States Sentencing Com-
mission deems appropriate in the mine-run of cases. 551 U.S.
___,
127 S. Ct. 2456, 2465 (2007). Mario Claiborne’s case
was mooted by his death, Claiborne v. United States, 551
1
United States v. Carty,
462 F.3d 1066 (9th Cir. 2006) (ordering rehear-
ing en banc in United States v. Zavala,
443 F.3d 1165 (9th Cir. 2006), and
United States v. Carty,
453 F.3d 1214 (9th Cir. 2006)). Carty and Zavala
are consolidated for purposes of rehearing en banc.
2838 UNITED STATES v. CARTY
U.S. ___,
127 S. Ct. 2245 (2007) (per curiam), so the Court
granted certiorari in Gall v. United States to address the ques-
tion whether a sentence that amounts to a substantial variance
from the Guidelines needs to be justified by extraordinary cir-
cumstances.
127 S. Ct. 2933 (2007). It held on December 10,
2007 that appellate courts must review all sentences, within
and without the Guidelines range, under a deferential abuse-
of-discretion standard. Gall, ___ U.S. ___,
128 S. Ct. 586,
591 (2007). On the same day, the Court held that, under
Booker, the cocaine Guidelines, like all others, are advisory
only and that the Guidelines, formerly mandatory, serve as
one factor among several that district courts must consider in
determining an appropriate sentence. Kimbrough v. United
States, ___ U.S. ___,
128 S. Ct. 558, 564 (2007).
Core principles having now been resolved by the Supreme
Court, we are left with one open question presented by Carty
and Zavala: whether to adopt an appellate “presumption” of
reasonableness for sentences imposed within the Guidelines
range. We decline to do so, although we recognize that a cor-
rectly calculated Guidelines sentence will normally not be
found unreasonable on appeal. Applying Rita, Gall and Kim-
brough, we conclude that there was no significant procedural
error in either Carty or Zavala, and that the sentences
imposed were not unreasonable. Accordingly, we affirm in
each case.2
I
Zavala’s appeal turns on whether the district court improp-
erly presumed the reasonableness of a sentence within the
2
Carty also challenges his conviction, which we affirm for reasons
stated in Parts I and II of the panel opinion, and the wording of the verdict
form, as to which we see no abuse of discretion and affirm for reasons
stated in Part III. Carty, 453 F.3d at 1217-18, vacated,
462 F.3d 1066 (9th
Cir. 2006).
UNITED STATES v. CARTY 2839
Guidelines range. Carty’s turns on whether the district court
adequately articulated reasons for its choice of sentence.3
Zavala. Juan Antonio Zavala was convicted of one count of
conspiring to distribute methamphetamine, cocaine, and
ecstacy and one count of distribution of methamphetamine.
His sentencing took place after Booker, but before Rita, Gall
and Kimbrough. After making various adjustments which
Zavala does not dispute, the district court determined that his
adjusted offense level was 43 and his criminal history cate-
gory was III. This yielded a life sentence as the applicable
range under the November 2004 version of the Sentencing
Guidelines.
At the outset of the hearing, the court indicated that it was
required to consider the advisory Guidelines range, but in the
context of the goals and purposes of sentencing as reflected
in 18 U.S.C. § 3553(a).4 The judge commented that “the
3
After ordering both cases to be reheard en banc, we asked for supple-
mental briefing on a broader set of issues. The parties complied, and their
input is appreciated. In addition, amicus curiae briefs in support of Carty
and Zavala were filed by Federal Public Defenders for the District of
Alaska; Central, Eastern and Northern Districts of California; District of
Hawaii; District of Nevada; District of Oregon; and the Western District
of Washington; by the Federal Defenders of Eastern Washington and
Idaho; by the Federal Defenders of Montana, Inc.; by the Federal Defend-
ers of San Diego, Inc.; by the National Association of Criminal Defense
Lawyers; by Douglas A. Berman; and by Houman Moghaddam.
4
Section 3553(a) provides, in pertinent part:
The court shall impose a sentence sufficient, but not greater than neces-
sary, to comply with the purposes set forth in paragraph (2) of this subsec-
tion. The court, in determining the particular sentence to be imposed, shall
consider—
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(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;
2840 UNITED STATES v. CARTY
Guideline range becomes a presumptive sentence, and it is
then for the Court to determine whether or not a specific fac-
tor exists in this case under those factors set forth in 3553(a)
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defen-
dant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treat-
ment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for
—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines
—
(i) issued by the Sentencing Commission pursuant to sec-
tion 994(a)(1) of title 28, United States Code, subject to
any amendments made to such guidelines by act of Con-
gress (regardless of whether such amendments have yet to
be incorporated by the Sentencing Commission into
amendments issued under section 994(p) of title 28); and
(ii) that, except as provided in section 3742(g), are in
effect on the date the defendant is sentenced . . . ;
(5) any pertinent policy statement —
(A) issued by the Sentencing Commission pursuant to sec-
tion 994(a)(2) of title 28, United States Code, subject to any
amendments made to such policy statement by act of Con-
gress (regardless of whether such amendments have yet to be
incorporated by the Sentencing Commission into amend-
ments issued under section 994(p) of title 28); and
(B) that, except as provided in section 3742(g), is in effect
on the date the defendant is sentenced.
(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.
UNITED STATES v. CARTY 2841
which would justify the Court in imposing a lesser sentence
than that set forth in the Guideline range.” The judge also
stated that he needed to justify any departure from the Guide-
lines range by reference to the sentencing factors set forth in
§ 3553(a), and looked to the defense to “at least explain to
[him] what those justifications are and what those factors are”
that would warrant a sentence less than life imprisonment.
Recognizing that he had to “impose a sentence sufficient, but
not greater than, necessary to comply with the purposes set
forth in [§ 3553(a)(2)],” the judge elicited, and heard, the par-
ties’ view as to “why would a sentence of, say, 360 months
not be sufficient?”
When Zavala took issue with the statement that the pre-
sumptive sentence was the Guidelines range (a life sentence),
arguing that the presumptive sentence should instead be the
bottom of the statutory range (a ten-year sentence) pursuant
to § 3553(a), the judge indicated that he believed the Guide-
lines should serve as “the starting point.” He explained that
“we start with the Guideline range and then work from that
to determine whether there are facts in this case unique to this
case which justify the Court in disregarding the Guideline
range, or at least deviating from the Guideline range in some
fashion” in terms of § 3553(a) and all the factors listed.
The court reviewed the relevant § 3553(a) factors and
found that a life sentence was “not necessary” to promote
respect for law, to deter others, or to protect the public; was
“simply excessive”; and would be disproportional to sen-
tences received by Zavala’s co-defendants. Correspondingly,
the court found that a 360-month sentence would reflect that
this is a serious matter, would promote respect for the law and
provide just punishment, and would afford adequate deter-
rence to others. Accordingly, the judge “exercise[d] [his] dis-
cretion to depart from the Guidelines or to deviate from the
Guidelines based upon [his] consideration of the factors set
forth in 18 U.S. Code Section 3553(a)” by imposing a term
of 360 months imprisonment.
2842 UNITED STATES v. CARTY
Carty. A jury convicted Alphonso Kinzar Carty on seven
counts of abusive sexual contact and aggravated sexual abuse
of his minor niece. He confessed to having molested her on
four different occasions when she was between 14- and 16-
years old, but later backtracked. The Presentence Report
(PSR) considered the offense conduct, Carty’s criminal his-
tory, and offender characteristics before recommending a sen-
tence at the top of the 235-293 months Guidelines range. It
also advised that there “is no information concerning the
offense or the offender which would warrant a departure from
the sentencing guidelines.”
Carty’s sentencing memorandum argued generally for a
lower sentence in consideration of the § 3553(a) factors. It
stressed his history and characteristics (Carty was a breadwin-
ner for his family with no criminal history; he stopped drink-
ing as a young man; he had a strong family relationship; and
he had an underprivileged upbringing and diminished capac-
ity to understand fully the world around him); the need for the
sentence imposed (his parents would likely not be alive when
he got out of prison; his young boys would be left without his
guidance and support; and the goals of deterrence and protect-
ing the public would be served by a much shorter sentence);
and the availability of alternative sentences (a lengthy period
of supervised release). The government’s memorandum
acknowledged that the Guidelines were advisory, but argued
that the Guidelines sentence outlined in the PSR was appro-
priate in light of the factors set forth in § 3553(a). It also pos-
ited that neither Carty’s conduct nor his circumstances
differed from the multitude of other sex offenders that the
Sentencing Commission took into consideration in promulgat-
ing the Guidelines.
At the sentencing hearing, the court indicated that it had
reviewed the PSR and the parties’ sentencing memoranda.
Seven members of Carty’s family testified. Counsel submitted
that Carty has “no criminal history to speak of,” “he is hard
working, and he is a good role model for his children”; and
UNITED STATES v. CARTY 2843
urged that alternative sentences such as sex offender registra-
tion and a lifetime of supervised release would be sufficient
to protect the public and keep Carty from reoffending. Coun-
sel asked the court to impose “something sufficient but not
greater than necessary,” arguing that the sentence recom-
mended by the PSR was much greater than necessary as it
would be equivalent to having committed second degree mur-
der. In imposing sentence, the judge recognized that Carty
had strong family support and that the matter was “a familial
tragedy of enormous proportion.” He then sentenced Carty to
a term of 235 months, the bottom of the Guidelines range.
II
[1] The basic framework is now settled for the district
courts’ task, and ours on appeal, under the Booker remedial
regime in which the Guidelines are no longer mandatory but
are only advisory. Rita, Gall, and Kimbrough supersede how
we, and the courts in this circuit, have approached the sen-
tencing process in the past.5 Thus, in light of what Rita, Gall,
and Kimbrough have to say:
• The overarching statutory charge for a district
court is to “impose a sentence sufficient, but not
greater than necessary” to reflect the seriousness
of the offense, promote respect for the law, and
provide just punishment; to afford adequate
deterrence; to protect the public; and to provide
the defendant with needed educational or voca-
tional training, medical care, or other correctional
treatment. 18 U.S.C. § 3553(a) and (a)(2).
• All sentencing proceedings are to begin by deter-
mining the applicable Guidelines range. The
range must be calculated correctly. In this sense,
5
Prior cases are overruled to the extent they are inconsistent with Rita,
Gall, Kimbrough, or this opinion.
2844 UNITED STATES v. CARTY
the Guidelines are “the ‘starting point and the ini-
tial benchmark,’ ” Kimbrough, 128 S. Ct. at 574
(quoting
Gall, 128 S. Ct. at 596), and are to be
kept in mind throughout the process, Gall, 128
S. Ct. at 596-97 n.6.
• The parties must be given a chance to argue for
a sentence they believe is appropriate.6
• The district court should then consider the
§ 3553(a) factors to decide if they support the
sentence suggested by the parties, i.e., it should
consider the nature and circumstances of the
offense and the history and characteristics of the
defendant; the need for the sentence imposed; the
kinds of sentences available; the kinds of sen-
tence and the sentencing range established in the
Guidelines; any pertinent policy statement issued
by the Sentencing Commission; the need to avoid
unwarranted sentence disparities among defen-
dants with similar records who have been found
guilty of similar conduct; and the need to provide
restitution to any victims. 18 U.S.C.
§ 3553(a)(1)-(7); Gall, 128 S. Ct. at 596-97 n.6.
• The district court may not presume that the
Guidelines range is reasonable. Rita, 127 S. Ct. at
2465 (citing
Booker, 543 U.S. at 259-60);
Gall,
128 S. Ct. at 596-97. Nor should the Guidelines
factor be given more or less weight than any
other. While the Guidelines are to be respectfully
6
Rita suggests the parties could argue that the Guidelines sentence
should not apply “perhaps because (as the Guidelines themselves foresee)
the case at hand falls outside the ‘heartland’ to which the Commission
intends individual Guidelines to apply, USSG § 5K2.0, perhaps because
the Guidelines sentence itself fails properly to reflect § 3553(a) consider-
ations, or perhaps because the case warrants a different sentence regard-
less.” 127 S. Ct. at 2465.
UNITED STATES v. CARTY 2845
considered, they are one factor among the
§ 3553(a) factors that are to be taken into account
in arriving at an appropriate sentence. Kim-
brough, 128 S. Ct. at 570;
Gall, 128 S. Ct. at 594,
596-97, 602.
• The district court must make an individualized
determination based on the facts. However, the
district judge is not obliged to raise every possi-
bly relevant issue sua sponte. Gall, 128 S. Ct. at
597, 599.
• If a district judge “decides that an outside-
Guidelines sentence is warranted, he must con-
sider the extent of the deviation and ensure that
the justification is sufficiently compelling to sup-
port the degree of the variance.” Id. at 597. This
does not mean that the district court’s discretion
is constrained by distance alone. Rather, the
extent of the difference is simply a relevant con-
sideration. At the same time, as the Court put it,
“[w]e find it uncontroversial that a major depar-
ture should be supported by a more significant
justification than a minor one.” Id. This conclu-
sion finds natural support in the structure of
§ 3553(a), for the greater the variance, the more
persuasive the justification will likely be because
other values reflected in § 3553(a) — such as, for
example, unwarranted disparity — may figure
more heavily in the balance.
• Once the sentence is selected, the district court
must explain it sufficiently to permit meaningful
appellate review. A statement of reasons is
required by statute, § 3553(c), and furthers the
proper administration of justice. See Rita, 127
S. Ct. at 2468 (stating that “[c]onfidence in a
judge’s use of reason underlies the public’s trust
2846 UNITED STATES v. CARTY
in the judicial institution”). An explanation com-
municates that the parties’ arguments have been
heard, and that a reasoned decision has been
made. It is most helpful for this to come from the
bench, but adequate explanation in some cases
may also be inferred from the PSR or the record
as a whole.
What constitutes a sufficient explanation will
necessarily vary depending upon the complexity
of the particular case, whether the sentence cho-
sen is inside or outside the Guidelines, and the
strength and seriousness of the proffered reasons
for imposing a sentence that differs from the
Guidelines range. A within-Guidelines sentence
ordinarily needs little explanation unless a party
has requested a specific departure, argued that a
different sentence is otherwise warranted, or
challenged the Guidelines calculation itself as
contrary to § 3553(a). This is because both the
Commission and the sentencing judge have deter-
mined that the sentence comports with the
§ 3553(a) factors and is appropriate in the ordi-
nary case.7 But the judge must explain why he
imposes a sentence outside the Guidelines. Rita,
127 S. Ct. at 2468;
Gall, 128 S. Ct. at 594 (indi-
cating that a district judge “must explain his con-
clusion that an unusually lenient or an unusually
7
Rita, 127 S. Ct. at 2464-65 (explaining that an “individual judge who
imposes a sentence within the range recommended by the Guidelines thus
makes a decision that is fully consistent with the Commission’s judgment
in general”);
id. at 2467-68 (noting that “where judge and Commission
both determine that the Guidelines sentence[ ] is an appropriate sentence
for the case at hand, that sentence likely reflects the § 3553(a) factors
(including its ‘not greater than necessary’ requirement)”);
Gall, 128 S. Ct.
at 594; cf.
Kimbrough, 128 S. Ct. at 575 (contrasting a Guideline tied to
a statutory mandatory minimum sentence that is not based on empirical
evidence and which does not “exemplify the Commission’s exercise of its
characteristic institutional role”).
UNITED STATES v. CARTY 2847
harsh sentence is appropriate in a particular case
with sufficient justifications”).
The district court need not tick off each of the
§ 3553(a) factors (to show that it has considered
them. We assume that district judges know the
law and understand their obligation to consider
all of the § 3553(a) factors, not just the Guide-
lines. See Walton v. Arizona, 497 U.S. 639, 653
(1990) (“Trial judges are presumed to know the
law and to apply it in making their decisions.”),
overruled on other grounds by Ring v. Arizona,
536 U.S. 584, 609 (2002). Nor need the district
court articulate in a vacuum how each § 3553(a)
factor influences its determination of an appropri-
ate sentence. However, when a party raises a spe-
cific, nonfrivolous argument tethered to a
relevant § 3553(a) factor in support of a
requested sentence, then the judge should nor-
mally explain why he accepts or rejects the
party’s position. Rita, 127 S. Ct. at 2468.
• Appellate review is to determine whether the sen-
tence is reasonable; only a procedurally errone-
ous or substantively unreasonable sentence will
be set aside. See id. at 2459 (citing
Booker, 543
U.S. at 261-63);
Gall, 128 S. Ct. at 594 (empha-
sizing that “appellate review of sentencing deci-
sions is limited to determining whether they are
‘reasonable’ ”).
• The abuse of discretion standard applies to all
sentencing decisions, whether the sentence is
inside the Guidelines range or outside of it. Gall,
128 S. Ct. at 596-97.8
8
Kimbrough indicates that in light of the sentencing judge’s greater
familiarity with the individual case and individual defendant, “a district
2848 UNITED STATES v. CARTY
• On appeal, we first consider whether the district
court committed significant procedural error,
then we consider the substantive reasonableness
of the sentence. Id. at 597.
• It would be procedural error for a district court to
fail to calculate — or to calculate incorrectly —
the Guidelines range; to treat the Guidelines as
mandatory instead of advisory; to fail to consider
the § 3553(a) factors; to choose a sentence based
on clearly erroneous facts; or to fail adequately to
explain the sentence selected, including any devi-
ation from the Guidelines range. Id.
• In determining substantive reasonableness, we
are to consider the totality of the circumstances,
including the degree of variance for a sentence
imposed outside the Guidelines range. Id. A court
of appeals may not presume that a non-
Guidelines sentence is unreasonable. Although a
court may presume on appeal that a sentence
within the Guidelines range is reasonable, id., we
decline to adopt such a presumption in this cir-
cuit.
• For a non-Guidelines sentence, we are to “give
due deference to the district court’s decision that
court’s decision to vary from the advisory Guidelines may attract greatest
respect when the sentencing judge finds a particular case ‘outside the
“heartland” to which the Commission intends individual Guidelines to
apply.’ On the other hand, while the Guidelines are no longer binding,
closer review may be in order when the sentencing judge varies from the
Guidelines based solely on the judge’s view that the Guidelines range
‘fails properly to reflect § 3553(a) considerations’ even in a mine-run
case.” 128 S. Ct. at 574-75 (internal citation to Rita omitted). The Court
found it unnecessary to wrestle with this matter because the crack cocaine
Guidelines at issue there were based on statutorily mandated minima
instead of on the Commission’s judgment of a sentence that achieves the
objectives of § 3553(a).
Id.
UNITED STATES v. CARTY 2849
the § 3553(a) factors, on a whole, justify the
extent of the variance.” Id. at 597; see also
id. at
602.
• We may not reverse just because we think a dif-
ferent sentence is appropriate. Id. at 597.
[2] As Rita observes, a number of circuits use a presump-
tion of reasonableness for within-Guidelines sentences,9 while
others do not.10
See 127 S. Ct. at 2462. The difference appears
more linguistic than practical: Those circuits that have not
adopted a presumption of reasonableness have nevertheless
concluded “that in the overwhelming majority of cases, a
Guidelines sentence will fall comfortably within the broad
range of sentences that would be reasonable in the particular
circumstances.”
Fernandez, 443 F.3d at 27; see also
Talley,
431 F.3d at 787-88. Until now, we have expressed no view on
the issue. However, we decline to embrace a presumption. We
recognize that a Guidelines sentence “will usually be reason-
able,”
Rita, 127 S. Ct. at 2465, and this done, we see no par-
ticular need for an appellate presumption that says so. A
“presumption” carries baggage as an evidentiary concept that
we prefer not to import. An appellate presumption, in any
event, does little work; even in jurisdictions where reason-
ableness is presumed, the presumption is not binding, it does
not shift the burden of persuasion or proof, and it lacks “inde-
pendent legal effect.”
Id. at 2463, 2465. Accordingly, we shall
simply abide by the Supreme Court’s admonition that “when
9
United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006); United
States v. Alonzo,
435 F.3d 551, 554 (5th Cir. 2006); United States v. Wil-
liams,
436 F.3d 706, 708 (6th Cir. 2006); United States v. Mykytiuk,
415
F.3d 606, 608 (7th Cir. 2005); United States v. Lincoln,
413 F.3d 716,
717-18 (8th Cir. 2005); United States v. Kristl,
437 F.3d 1050, 1054 (10th
Cir. 2006); United States v. Dorcely,
454 F.3d 366, 376 (D.C. Cir. 2006).
10
United States v. Jimenez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006) (en
banc); United States v. Fernandez,
443 F.3d 19, 27 (2d Cir. 2006); United
States v. Cooper,
437 F.3d 324, 331 (3d Cir. 2006); United States v. Tal-
ley,
431 F.3d 784, 788 (11th Cir. 2005) (per curiam).
2850 UNITED STATES v. CARTY
the judge’s discretionary decision accords with the Commis-
sion’s view of the appropriate application of § 3553(a) in the
mine run of cases, it is probable that the sentence is reason-
able.”
Id. at 2465.
III
[3] Zavala contends that the district court erred by applying
the Guidelines in a presumptive fashion. Although the judge
at first used the phrase “presumptive sentence” when describ-
ing his view of the role of the Guidelines after Booker, he
clarified that by that he meant the Guidelines should serve as
“the starting point” from which the court should then make an
individual assessment of the facts unique to Zavala’s case
which justify departure or deviation from the Guidelines
range in terms of § 3553(a). The judge also acknowledged his
obligation to “impose a sentence sufficient, but not greater
than, necessary to comply with the purposes set forth in
[§ 3553(a)(2)] and the traditional goals of sentencing.”
[4] It would have been error had the judge actually attached
a presumption of reasonableness to the Guidelines range or
weighted the Guidelines range more heavily than other
§ 3553(a) factors. As Rita and Gall make clear, the district
judge may not presume that the Guidelines range is reason-
able. Gall, 128 S. Ct. at 596;
Rita, 127 S. Ct. at 2456. But we
take him at his word, that he instead regarded the Guidelines
as the “starting point.” The record reflects that this is what he
did. Having begun by correctly calculating the Guidelines
range, the judge considered the § 3553(a) factors and made an
individualized assessment that led him to find that a life sen-
tence would be excessive and disproportionate to the sen-
tences received by Zavala’s co-defendants, and that a 360-
month sentence (rather than the life sentence prescribed by
the Guidelines) was sufficient to promote respect for the law,
provide adequate deterrence, and protect the public.
[5] To the extent the sentencing judge’s initial characteriza-
tion was inopportune, we cannot say that it was significant
UNITED STATES v. CARTY 2851
procedural error because the court corrected itself. In actual-
ity, the judge treated the Guidelines range as a baseline, and
moved from there to tailor a sentence to the individualized
offense and offender characteristics of Zavala’s case in con-
sideration of the § 3553(a) factors. See Kimbrough, 128 S. Ct.
at 575 (noting that the district court could not have abused its
discretion in reducing the sentence by 4.5 years when it began
by properly calculating and considering the advisory Guide-
lines range, next addressed the relevant § 3553(a) factors,
then arrived at a sentence that it reasoned was sufficient, but
not greater than necessary, to accomplish the sentencing goals
in § 3553(a)(2));
Gall, 128 S. Ct. at 596-97. Given the defer-
ence due the sentencing judge’s individualized determination,
and in light of all the circumstances in the case, the sentence
imposed was reasonable. We affirm the judgment of the dis-
trict court.
IV
[6] Carty contends that the district court imposed a proce-
durally flawed sentence by failing to provide sufficient rea-
sons for selecting a sentence at the bottom of the Guidelines
range rather than a lesser sentence. Although the judge gave
no explicit reasons for doing so, the arguments were straight-
forward and uncomplicated, as they were in Rita. Rita argued
for a sentence below the Guidelines range based on his health,
fear of retaliation in prison, and military record. The judge lis-
tened to Rita’s arguments and “then simply found these cir-
cumstances insufficient to warrant a sentence lower than the
Guidelines range . . . . He must have believed that there was
not much more to say.” Rita, 127 S. Ct. at 2469. The Court
upheld the sentence.11
11
It observed:
We acknowledge that the judge might have said more. He might
have added explicitly that he had heard and considered the evi-
dence and argument; that (as no one before him denied) he
2852 UNITED STATES v. CARTY
Here, the district judge had presided over Carty’s trial. He
reviewed the PSR and the parties’ submissions that discussed
applicability of § 3553(a) factors; and he listened to testimony
adduced at the sentencing hearing and to argument by both
parties. The judge acknowledged Carty’s specially strong
family support and the impact that prolonged incarceration
would have. Based on all these factors, the judge imposed the
sentence. The sentence was within, but at the low end of, the
Guidelines range. “[W]hen a judge decides simply to apply
the Guidelines to a particular case, doing so will not necessar-
ily require lengthy explanation. Circumstances may well
make clear that the judge rests his decision upon the Commis-
sion’s own reasoning that the Guidelines sentence is a proper
sentence (in terms of § 3553(a) and other congressional man-
dates) in the typical case, and that the judge has found that the
case before him is typical.” Rita, 127 S. Ct. at 2468.
[7] Nothing suggests that this case is different. It was nei-
ther complex nor unusual. While Carty argued for a lesser
sentence in consideration of his history and characteristics,
the need for the sentence imposed, and the alternatives avail-
able, his proffered justifications were centered on his sons’
need for his presence as a role model. In light of Carty’s hav-
ing sexually abused his minor niece on numerous occasions
with his sons nearby, these justifications are not compelling
enough to require an explanation for a sentence at the low-end
thought the Commission in the Guidelines had determined a sen-
tence that was proper in the minerun of roughly similar perjury
cases; and that he found that Rita’s personal circumstances here
were simply not different enough to warrant a different sentence.
But context and the record make clear that this, or similar, rea-
soning, underlies the judge’s conclusion. Where a matter is as
conceptually simple as in the case at hand and the record makes
clear that the sentencing judge considered the evidence and argu-
ments, we do not believe the law requires the judge to write more
extensively.
Rita, 127 S. Ct. at 2469.
UNITED STATES v. CARTY 2853
of the Guidelines range. Given the circumstances, it is hard to
imagine what the district judge might usefully have said.
Carty also maintains that, because the district court did not
affirmatively state that it considered the § 3553(a) factors, we
should assume that it did not and we should assume that it
(impermissibly) treated the Guidelines sentence as the pre-
sumptively reasonable sentence. This we shall not do. First,
“in the ordinary case, the Commission’s recommendation of
a sentencing range will ‘reflect a rough approximation of sen-
tences that might achieve § 3553(a)’s objectives.’ ” Kim-
brough, 128 S. Ct. at 574 (quoting
Rita, 127 S. Ct. at 2465).
Further, the judge stated that he reviewed the papers; the
papers discussed the applicability of § 3553(a) factors; there-
fore, we take it that the judge considered the relevant factors.
This includes the “not greater than necessary” requirement.
Rita, 127 S. Ct. at 2467. Finally, sentencing took place after
Booker, and the parties’ memoranda proceeded on the footing
that the Guidelines were advisory. The district judge gave no
indication that he felt bound by the Guidelines range or bound
to treat the Guidelines sentence as presumptively reasonable.
In short, the sentencing judge “set forth enough to satisfy
[us] that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking
authority.”
Rita, 127 S. Ct. at 2468. And we see nothing
unusual about Carty’s circumstances to compel a lower sen-
tence than the low-end of the Guidelines range. Therefore,
discerning neither significant procedural error nor a substan-
tively unreasonable sentence, we leave Carty’s sentence in
place and affirm the judgment.
AFFIRMED.
2854 UNITED STATES v. CARTY
KOZINSKI, Chief Judge, with whom KLEINFELD, Circuit
Judge, joins, concurring in relevant part:
I join Judge Rymer’s opinion with the understanding that
it affirms Carty’s within-Guidelines sentence by invoking a
presumption that within-Guidelines sentences are “reason-
able.” Despite the opinion’s quixotic claim that it “decline[s]
to embrace a presumption [of reasonableness],” maj. op. at
2849, it’s clear that this is precisely what the opinion does.
After disposing of Carty’s procedural objections, see
id. at
2850-53, the opinion devotes few words to the reasonableness
of his sentence; it affirms because “we see nothing unusual
about Carty’s circumstances to compel a lower sentence.”
Id.
at 2853.
When a sentence is within the Guidelines range, we know
that “both the sentencing judge and the Sentencing Commis-
sion . . . have reached the same conclusion” that the sentence
is “proper.” Rita v. United States,
127 S. Ct. 2456, 2463
(2007). We must presume that such a sentence is reasonable,
and we can rest on this presumption unless we are shown
something “unusual” that “compel[s]” a different conclusion.
Maj. op. at 2853. Judge Rymer does this here, so I’m pleased
to join.
SILVERMAN, Circuit Judge, concurring:
In Gall v. United States,
128 S. Ct. 586, 597 (2007), the
Supreme Court said, “When conducting [appellate review of
the reasonableness of a sentence,] the court will, of course,
take into account the extent of any variance from the Guide-
lines. If the sentence is within the Guidelines range, the appel-
late court may, but is not required to, apply a presumption of
reasonableness. [citing Rita v. United States,
127 S. Ct.
2456].”
UNITED STATES v. CARTY 2855
Despite this very plain statement that appellate courts may
exercise case-by-case discretion about whether to apply a pre-
sumption of reasonableness when reviewing a Guidelines sen-
tence, the majority adopts its own rule — “[W]e decline to
adopt such a presumption in this circuit” — not just in this
case, but in all cases in this circuit. I fail to see by what right
the majority presumes to prohibit the discretionary application
of a presumption of reasonableness in all cases, in light of the
fact that the Supreme Court has specifically authorized it.
With all due respect, it does not matter that the majority
thinks that a presumption of reasonableness on appeal carries
too much “baggage,” as they put it. What matters is what the
Supreme Court thinks, and the Supreme Court thinks that “the
appellate court may, but is not required to, apply a presump-
tion of reasonableness.” Gall, 128 S.Ct at 597. (Emphasis
added.) Is that not clear enough?
Perhaps the majority reads the language from Gall to invite
each circuit to conjure up its own circuit-wide rule, instead of
as a mandate for case-by-case appellate discretion. If so, I
respectfully submit that this is a fanciful interpretation of the
Court’s opinion. The Supreme Court is in the business of
resolving circuit splits, not inviting them. Indeed, the Court
explicitly stated in Gall that it is concerned with achieving
“nationwide consistency” when it comes to federal sentenc-
ing. Id. at 596. Furthermore, the language and structure of the
Gall opinion itself show that the Supreme Court was provid-
ing a step-by-step approach to how a given sentence is to be
reviewed on appeal: First, applying an abuse of discretion
standard, the appellate court must ensure that no significant
procedural error occurred, such as a miscalculation of the
Guidelines.
Id. at 597. Next, the court is to consider the sub-
stantive reasonableness of the sentence. In doing so, the court
is to take into account the totality of the circumstances and the
extent of any variance from the Guidelines.
Id. Then, the
Court said, “[i]f the sentence is within the Guidelines range,
the appellate court may, but is not required to, apply a pre-
2856 UNITED STATES v. CARTY
sumption of reasonableness.”
Id. Finally, if the sentence is
outside the Guidelines range, the court may not apply a pre-
sumption of unreasonableness.
Id.
In context, it is thus apparent that the Court was explaining
exactly how an appellate panel should approach the review of
any given sentence, and not inviting each circuit to adopt its
own circuit-wide policy on the presumption of reasonable-
ness.
And the Court’s approach makes perfect sense. In a routine
case, involving simple facts and no serious argument against
the correctness of the Guidelines sentence, the reviewing
court may choose to apply a presumption of reasonableness.
On the other hand, in a complex case with unusual facts or
many variables, the reviewing court may find that a presump-
tion of reasonableness is not appropriate. This, it seems to me,
is what the Supreme Court envisioned when it said, “If the
sentence is within the Guidelines range, the appellate court
may, but is not required to, apply a presumption of reason-
ableness.”
Turning to the cases at hand, I would apply the presump-
tion of reasonableness to the sentences under review and,
finding no abuse of discretion on the part of the district courts,
would affirm.
