United States v. Pyles ( 2007 )


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  •              Vacated by Supreme Court, filed January 7, 2008
    PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,                
    Plaintiff-Appellant,
    v.                                No. 06-4522
    DERRY DREW PYLES,
    Defendant-Appellee.
    
    Appeal from the United States District Court
    for the Northern District of West Virginia, at Clarksburg.
    Irene M. Keeley, Chief District Judge.
    (1:05-cr-00023-IMK-AL)
    Argued: December 1, 2006
    Decided: April 11, 2007
    Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
    Vacated and remanded by published opinion. Judge Williams wrote
    the opinion, in which Judge Niemeyer and Judge King joined.
    COUNSEL
    ARGUED: Zelda Elizabeth Wesley, Assistant United States Attor-
    ney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg,
    West Virginia, for Appellant. James Bryan Zimarowski, Morgantown,
    West Virginia, for Appellee. ON BRIEF: Rita R. Valdrini, Acting
    United States Attorney, Wheeling, West Virginia, for Appellant.
    2                      UNITED STATES v. PYLES
    OPINION
    WILLIAMS, Circuit Judge:
    Derry Drew Pyles pleaded guilty to one count of aiding and abet-
    ting the distribution of crack cocaine, in violation of 21 U.S.C.A.
    § 841 (West 1999 & Supp. 2000). Although the advisory guideline
    range called for 63-78 months’ imprisonment, the district court
    imposed a variance sentence of 5 years’ probation with 6 months’
    home confinement.
    The district court viewed probation as an appropriate sentence in
    this case because of Pyles’s extraordinary rehabilitation. The Govern-
    ment appeals this sentence, arguing that the extent of the variance is
    unreasonable. While we appreciate the thoughtfulness that went into
    the district court’s decision not to impose a sentence of imprisonment,
    we agree with the Government that the variance sentence of probation
    does not reflect the seriousness of Pyles’s offense or provide a just
    punishment. The sentence therefore failed to satisfy adequately the
    sentencing factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 &
    Supp. 2006). Accordingly, we vacate Pyles’s sentence and remand for
    resentencing.
    I.
    During the late spring and early summer of 2004, the West Virginia
    State Police investigated crack cocaine distribution in the area of
    Morgantown, West Virginia. This investigation led undercover officer
    Sgt. Joe Adams to call Melodie Hatcher on May 27, 2004, and tell her
    that he wanted to purchase $100 of crack cocaine. Hatcher was part
    of Pyles’s circle of drug-using friends, which also included Latasha
    Linear and Lucinda McCloy. To feed their addiction, these friends
    would obtain ("score") drugs for other people and would then keep
    ("pinch") some of the drugs as payment.
    After Sgt. Adams contacted her, Hatcher called Pyles to "score"
    drugs for her. She then took Sgt. Adams to Pyles’s residence in Mor-
    gantown, where Sgt. Adams met Pyles as Hatcher obtained the crack
    cocaine. While they were waiting for Hatcher, Pyles gave Sgt. Adams
    UNITED STATES v. PYLES                            3
    his phone number so, in his words, he "could cut [Hatcher] out of the
    loop and . . . pinch more for [himself]." (J.A. at 102.)1 After leaving
    the residence, Hatcher gave Sgt. Adams the crack cocaine minus the
    portion that she had "pinched" for brokering the deal. Using the phone
    number Pyles had provided him, Sgt. Adams twice contacted Pyles on
    June 12, 2004, and purchased $100 quantities of crack cocaine at
    Pyles’s home.
    On March 1, 2005, a federal grand jury in the Northern District of
    West Virginia returned an indictment charging Pyles with conspiracy
    to distribute in excess of five grams of cocaine base ("crack cocaine"),
    in violation of 21 U.S.C.A. §§ 846 (West 1999 & Supp. 2006) and
    841(b)(1)(B)(iii), and with three counts of distributing .15, .23, and
    .33 grams of crack cocaine (reflecting the controlled buys by Sgt.
    Adams), in violation of §§ 841(a)(1), (b)(1)(C). The indictment also
    charged Hatcher, McCloy, and Linear with the distribution conspiracy
    and with substantive distribution offenses. On May 6, 2005, Pyles
    entered into a plea agreement with the Government and ultimately
    pleaded guilty to one count of aiding and abetting the distribution of
    .23 grams of crack cocaine, in violation of 21 U.S.C.A. § 841(a)(1),
    (b)(1)(C). The presentence report (PSR) determined that Pyles was
    responsible for a total drug relevant conduct of 26.4 grams of crack
    cocaine, which was calculated by adding the quantity of controlled
    buys by Sgt. Adams to the quantities of crack cocaine that other indi-
    viduals admitted to buying from Pyles or observed him sell to others.
    Based on this quantity of drugs, and taking into account a three-level
    reduction for acceptance of responsibility, the PSR calculated a total
    guideline offense level of 25. Considering Pyles’s various adult crimi-
    nal convictions, the PSR determined that Pyles fell within a criminal
    history category of II.2 Pyles did not object to the PSR’s determina-
    1
    Citations to "(J.A. at ___.)" refer to the contents of the Joint Appendix
    filed by the parties in this appeal.
    2
    The PSR included in Pyles’s criminal history determination his two
    convictions for driving under the influence (DUI) and one conviction for
    domestic battery. Pursuant to U.S. Sentencing Guidelines Manual,
    § 4A1.2(c) (2004), the PSR excluded from Pyles’s criminal history deter-
    mination two convictions for driving while his license was revoked for
    DUI.
    4                      UNITED STATES v. PYLES
    tion that he was responsible for distributing 26.4 grams of crack
    cocaine.
    Pyles’s sentencing hearing commenced on September 2, 2005.
    Based on the PSR, the district court determined, without objection,
    that the advisory guideline range was 63-78 months’ imprisonment.
    The district court then examined the sentencing factors set forth in 18
    U.S.C.A. § 3553(a). Considering "the history and characteristics of
    the defendant," 18 U.S.C.A. § 3553(a)(1), the court noted that it had
    received two letters from Pyles’s employer. The first letter, sent in
    May 2005, described Pyles’s efforts to turn his life around, by estab-
    lishing a new home, paying his debts, and contacting the county sher-
    iff to resolve a DUI charge. The second letter, sent just prior to
    Pyles’s sentencing hearing, stated that Pyles "continued to prove him-
    self an excellent employee" and described him as "a trustworthy indi-
    vidual and someone who enjoys the numerous tasks . . . put before
    him." (J.A. at 154.)
    The district court also discussed the need for Pyles to receive drug
    treatment counseling. This need prompted the district court to con-
    tinue Pyles’s sentencing so that Pyles could work with a noted sub-
    stance abuse counselor in Morgantown.
    At the beginning of Pyles’s resumed sentencing hearing on March
    24, 2006, the district court noted that Pyles consistently met with his
    substance abuse counselor, who reported that Pyles "ha[d] done better
    than any person I am currently working with." (J.A. at 55.) Pyles’s
    probation officer also reported to the district court that Pyles had
    regained his suspended driver’s license and had been free from drugs
    and alcohol during his presentencing release.
    The district court then had a colloquy with the parties about the
    § 3553(a) factors and whether a sentence of probation would better
    serve those factors than imprisonment. The Government pointed to
    the fact that Pyles’s co-defendant, Hatcher, had been sentenced to 37
    months’ imprisonment and argued that there was not really any differ-
    ence between Hatcher and Pyles in terms of their rehabilitation and
    that sentencing them differently would create a disparity. The district
    court rejected this argument, however, noting that "case law in the
    Fourth Circuit . . . says you don’t compare co-defendants to determine
    UNITED STATES v. PYLES                           5
    3
    disparity." (J.A. at 59.) On the other hand, the district court observed
    the seriousness of Pyles’s crime and that he was the source of drugs
    that his co-defendants distributed to others.
    In the end, however, the district court viewed Pyles’s rehabilitation
    as the decisive factor. Based on Pyles’s substantial rehabilitation, the
    district court imposed a variance sentence of 5 years’ probation with
    a condition of 6 months’ home confinement.
    On April 24, 2006, the district court entered a Judgment in a Crimi-
    nal Case and included a twenty-two page statement explaining its rea-
    sons for imposing a variance sentence of probation. The well-written
    statement analyzed in detail how the facts of Pyles’s case comported
    with the sentencing factors of § 3553(a). Starting with the factor of
    § 3553(a)(1), "the nature and circumstances of the offense and the his-
    tory and characteristics of the defendant," the district court stated that
    "Pyles’[s] history and characteristics were determinative. His personal
    rehabilitative efforts both pre- and post-conviction have been extraor-
    dinary, and beyond anything seen in other criminal cases this judge
    has handled during almost fourteen years of criminal sentencing
    under the guidelines." (J.A. at 137.) The district court observed that
    Pyles abruptly stopped using drugs more than six months before he
    was indicted and that Pyles had continued on a path of rehabilitation
    by proving himself to be a good employee, repaying past debts, recti-
    fying a DUI offense, and abstaining from drugs.
    The district court recognized that, while Pyles’s rehabilitation was
    extraordinary, his drug distribution offense was serious. See 18
    U.S.C.A. § 3553(a)(1) (requiring sentencing courts to consider the
    "nature and circumstances of the offense"). In fact, the district court
    concluded that the one count of aiding and abetting distribution to
    which Pyles pleaded guilty did not actually reflect the extent or seri-
    ousness of Pyles’s offense. As the court explained, "Pyles’ offense
    was part of a quintessential crack case involving a significant amount
    3
    The district court did not cite a particular case, but it could have been
    referring to United States v. Ellis, 
    975 F.2d 1061
    (4th Cir. 1992), in
    which we held that, absent proof of prosecutorial misconduct, "a district
    court may not depart downward based upon the disparity of sentences
    among co-defendants." 
    Id. at 1066.
    6                       UNITED STATES v. PYLES
    of a dangerous drug, multiple sales, and numerous people." (J.A. at
    145.)
    With these facts in mind, the district court then proceeded to con-
    sider the need for Pyles’s sentence "(A) to reflect the seriousness of
    the offense, to promote respect for the law, and to provide just punish-
    ment for the offense; (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 treatment in
    the most effective manner." 18 U.S.C.A. § 3553(a)(2). The district
    court concluded that "a sentence of probation will allow Pyles to com-
    plete valuable vocational training and take advantage of available
    opportunities for advancement at work in the most effective manner."
    (J.A. at 146 (citing § 3553(a)(2)(D).) Because Pyles had been moni-
    tored for drug use and tested negative at every screening during the
    six months prior to his indictment, the district court concluded that
    "incarceration is not necessary to protect the public from further
    crimes by Pyles, (18 U.S.C. § 3553(a)(2)(C)), and a sentence of pro-
    bation that includes home confinement will sufficiently restrict his
    freedom to deter any risk of future criminal conduct. (18 U.S.C.
    § 3553(a)(2)(B))." (J.A. at 147.) Although it noted that aiding and
    abetting the distribution of crack cocaine was a serious offense, the
    district court concluded that a variance sentence of 5 years’ probation
    was sufficient, but not greater than necessary, to punish Pyles for his
    offense.
    Finally, the district court considered whether the variance sentence
    would create "unwarranted sentence disparities among defendants
    with similar records who have been found guilty of similar conduct."
    18 U.S.C.A. § 3553(a)(6). Although expressly acknowledging that
    Pyles’s variance sentence would indeed create a sentencing disparity
    relative to other defendants convicted of distributing crack cocaine,
    the district court concluded that the disparity was warranted because
    of Pyles’s unique rehabilitation. (J.A. at 149-50 ("[I]ncarceration [of
    Pyles] would be a gross mistake, a warehousing effort that would be
    a poor substitute for the positive rehabilitative influence Pyles has
    found in work, counseling, and education outside the correctional sys-
    tem.").)
    UNITED STATES v. PYLES                         7
    Having determined that a variance sentence was warranted under
    § 3553(a), the district court analyzed whether the extent of the vari-
    ance sentence was justified by comparing Pyles’s case with our deci-
    sion in United States v. Moreland, 
    437 F.3d 424
    (4th Cir. 2006),
    which vacated a variance sentence because the extent of the variance
    — a reduction from 360 months to 120 months’ imprisonment — was
    unreasonable. 
    Id. at 437.
    The district court observed that in Moreland
    the extent of the variance was unreasonable because the defendant in
    that case was a repeat drug offender and because the defendants’s
    "‘desultory pursuit of his education and his spotty employment his-
    tory . . . can provide little confidence in his willingness to become a
    productive member of society, irrespective of his ability to do so.’"
    (J.A. at 151 (quoting 
    Moreland, 437 F.3d at 437
    .).) By contrast, the
    district court concluded that Pyles was unlike the defendant in More-
    land because Pyles was "not a repeat drug offender." (J.A. at 151.)
    Further, unlike the defendant in Moreland, Pyles not only "exhibited
    a willingness to become a productive member of society . . . he has
    achieved that goal." (J.A. at 152.) For these reasons, the district court
    concluded that it was reasonable to impose a variance sentence of 5
    years’ probation with a condition of 6 months’ home confinement.
    The Government appeals this variance sentence. We have jurisdic-
    tion pursuant to 18 U.S.C.A. § 3742(b) (West 2000 & Supp. 2006)
    (authorizing the Government to appeal sentencing decisions) and 28
    U.S.C.A. § 1291 (West 2006).
    II.
    A.
    Before the establishment of the mandatory Sentencing Guidelines
    by the Sentencing Reform Act (SRA) of 1984, a sentencing judge had
    "wide discretion to decide whether the offender should be incarcer-
    ated and for how long, whether he should be fined and how much,
    and whether some lesser restraint, such as probation, should be
    imposed instead of imprisonment or fine." Mistretta v. United States,
    
    488 U.S. 361
    , 363 (1989) (emphasis added). Because the sentencing
    "court’s determination as to what sentence was appropriate met with
    virtually unconditional deference on appeal," there was effectively no
    appellate review of the sentence imposed. 
    Id. at 364.
    8                           UNITED STATES v. PYLES
    The SRA changed this scheme. Not only did the SRA establish
    mandatory Sentencing Guidelines to circumscribe a sentencing
    judge’s discretion, it established appellate review of sentences.
    Although the Supreme Court held in United States v. Booker, 
    543 U.S. 220
    (2005), that the mandatory application of the Guidelines was
    inconsistent with Sixth Amendment principles, 
    id. at 244,
    it addressed
    the constitutional defect by severing and excising the portion of the
    SRA that made the Guidelines mandatory while also maintaining
    appellate review. The Sentencing Guidelines are no longer manda-
    tory, but post-Booker a district court still "must consult those Guide-
    lines and take them into account when sentencing." 
    Id. at 264.
    We in
    turn review the district court’s sentencing decision for reasonableness,
    which serves "to iron out sentencing differences." 
    Id. at 263.
    A district court imposing a sentence in the wake of Booker "must
    engage in a multi-step process that begins with correctly determining
    the defendant’s Guideline range." United States v. Tucker, 
    473 F.3d 556
    , 560 (4th Cir. 2007). The court must then "determine whether a
    sentence within that range . . . serves the factors set forth in § 3553(a)
    and, if not, select a sentence [within statutory limits] that does serve
    those factors."4 
    Moreland, 437 F.3d at 432
    (alterations in original)
    (internal quotation marks omitted).
    4
    Under § 3553(a), a sentencing court must 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;
    (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;
    UNITED STATES v. PYLES                            9
    Selecting a non-guideline range sentence requires two additional
    steps. First, the court "should . . . look to whether a departure is
    (4) the kinds of sentence and the sentencing range established
    for—
    (A) the applicable category of offense committed by the appli-
    cable 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 Congress
    (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
    (ii) that, except as provided in section 3742(g), are in
    effect on the date the defendant is sentenced; or
    (B) in the case of a violation of probation or supervised
    release, the applicable guidelines or policy statements issued
    by the Sentencing Commission pursuant to section 994(a)(3)
    of title 28, United States Code, taking into account any
    amendments made to such guidelines or policy statements by
    act of Congress (regardless of whether such amendments have
    yet to be incorporated by the Sentencing Commission into
    amendments issued under section 994(p) of title 28);
    (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 Congress
    (regardless of whether such amendments have yet to be incor-
    porated by the Sentencing Commission into amendments
    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.
    18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006)
    10                      UNITED STATES v. PYLES
    appropriate based on the Guidelines Manual or relevant case law." 
    Id. "If an
    appropriate basis for departure exists, the district court may
    depart." 
    Id. Second, the
    court must determine whether the resulting
    range serves § 3553(a)’s sentencing factors; if it does not, the court
    may then elect to impose a variance sentence. 
    Id. The district
    court
    "must articulate the reasons for the sentence imposed" and provide an
    explanation for the variance that is tied to the § 3553(a) sentencing
    factors. 
    Id. Our review
    of sentences for reasonableness "involves both proce-
    dural and substantive components." 
    Moreland, 437 F.3d at 434
    . "A
    sentence may be procedurally unreasonable, for example, if the dis-
    trict court provides an inadequate statement of reasons or fails to
    make a necessary factual finding." Id.; see, e.g., United States v. Dav-
    enport, 
    445 F.3d 366
    , 372 (4th Cir. 2006) (concluding that the district
    court’s statement of reasons for imposing a variance sentence "was
    lacking in that the court did not explain how [the] variance sentence
    better served the competing interests of § 3553(a) than [a] guideline
    sentence would" (internal quotation marks omitted)). "A sentence
    may be substantively unreasonable if the court relies on an improper
    factor or rejects policies articulated by Congress or the Sentencing
    Commission." 
    Moreland, 437 F.3d at 434
    ; see United States v. Eura,
    
    440 F.3d 625
    ,634 (4th Cir. 2006) (vacating a variance sentence based
    on the sentencing court’s rejection of the 100:1 crack/powder cocaine
    sentencing ratio).
    There is no contention that Pyles’s sentence is procedurally unreason-
    able.5 The district court correctly determined, after making appropri-
    ate findings of fact, the applicable guideline range; determined that a
    sentence within the guideline range did not satisfy the § 3553(a) fac-
    tors; determined that there was no basis for departure that would
    result in a guideline sentence that would serve the § 3553(a) factors;
    and elected to impose a variance sentence. See 
    Moreland, 437 F.3d at 432
    . Finally, the district court provided an extensive statement of
    reasons for why a variance sentence was warranted. Indeed, the dis-
    5
    At the time of Pyles’s second sentencing hearing, the district court
    had the benefit of our decisions in United States v. Eura, 
    440 F.3d 625
    (4th Cir. 2006), and United States v. Moreland, 
    437 F.3d 424
    (4th Cir.
    2006), and did an admirable job of following their procedural directions.
    UNITED STATES v. PYLES                         11
    trict court’s statement is a model for written reasons accompanying
    the entry of a variance sentence. It carefully identified the competing
    concerns of sentencing and cogently explained why, in the district
    court’s view, the sentence was appropriate.
    The Government concedes that a variance sentence is warranted in
    this case, but contends that the extent of the variance sentence is sub-
    stantively unreasonable. We have instructed that "[t]he farther the
    court diverges from the advisory guideline range, the more compel-
    ling the reasons for the divergence must be." 
    Id. at 434.
    The Govern-
    ment contends that Pyles’s sentence of five years’ probation is an
    "extraordinary variance [that] is not supported by extraordinary cir-
    cumstances." (Appellant’s Br. at 12.) For the reasons that follow, we
    agree that the variance sentence imposed is unreasonable.
    B.
    At the outset, it will help to describe the extent of the variance sen-
    tence. We often refer to variance sentences by noting the scope of the
    increase or decrease and describing the fractional or percentage dif-
    ference between the variance sentence and the applicable guideline
    range. See, e.g., 
    Moreland, 437 F.3d at 435
    (vacating a variance sen-
    tence "two-thirds . . . less than the bottom of the advisory guideline
    range"); 
    Tucker, 473 F.3d at 563-64
    (vacating a variance sentence that
    was "a 114 month increase from the top of the advisory guideline
    range," which "represented a 480% increase"). In this case, however,
    describing the variance sentence in mathematical terms is not very
    helpful because the district court imposed no imprisonment when the
    advisory guideline range called for 63-78 months’ imprisonment.
    Thus, the variance sentence represents a 100% decrease even though
    in actual months it is less than the extent of variances that other courts
    have concluded are reasonable.6 See United States v. Collington, 
    461 F.3d 805
    , 809 (6th Cir. 2006) (affirming as reasonable a variance sen-
    tence of 68 months below the advisory guideline range of 188-235
    6
    A variance sentence will always appear to be more dramatic when the
    advisory guideline range is low and less dramatic when the range is high.
    For example, a 60 month variance from an advisory guideline sentence
    of 120 months would be a 50% reduction, but a 60 month variance from
    an advisory guideline sentence of 240 months would be a 25% reduction.
    12                      UNITED STATES v. PYLES
    months’ imprisonment); United States v. Hewlett, 
    453 F.3d 876
    , 881
    (7th Cir. 2006) (affirming as reasonable a variance sentence of 240
    months’ imprisonment when the advisory guidelines called for life
    imprisonment); United States v. Krutsinger, 
    449 F.3d 827
    , 831 (8th
    Cir. 2006) (affirming as reasonable a variance sentence 79 months
    below the advisory guideline range of 100-125 months’ imprison-
    ment); cf. 
    Moreland, 437 F.3d at 432
    (remanding for imposition of a
    variance sentence no more than 120 months below the advisory
    guideline range).
    Given the nature of the variance sentence before us, it is better to
    describe the variance by considering the number of guideline offense
    levels between the variance sentence of probation and the recom-
    mended guideline range of 63-78 months’ imprisonment. See United
    States v. Maloney, 
    466 F.3d 663
    , 668 (8th Cir. 2006) ("The offense-
    level approach seems more in keeping with our assigned role to fur-
    ther the objectives of the Sentencing Reform Act, because the guide-
    line system established by the Act was designed to adjust sentences
    incrementally by offense level, rather than by percentages."); cf.
    United States v. Dalton, 
    477 F.3d 195
    , 200 (4th Cir. 2007) (instruct-
    ing that upward departures from Criminal History Category (CHC) VI
    must be made by moving down the CHC VI column "to successively
    increasing offense levels until an appropriate sentencing range is
    reached" (internal quotation marks omitted)). Here, Pyles’s unchal-
    lenged guideline offense level was 25, placing him squarely in Zone
    D of the Sentencing Table. See U.S. Sentencing Guidelines Manual
    ch. 5, pt. A (2004). To impose a sentence of probation with a condi-
    tion of 6 months’ home confinement, the district court had to vary
    sixteen offense levels, placing Pyles in Zone B of the Sentencing
    Table. See U.S. Sentencing Guidelines Manual § 5B1.1(a)(2) (autho-
    rizing a sentence of probation when the applicable guideline range is
    in Zone B if the sentence includes home detention). We must consider
    whether a variance of sixteen offense levels is reasonable in this case.
    C.
    1.
    The Government argues that the extent of the variance sentence is
    unreasonable because the district court failed to consider the need to
    UNITED STATES v. PYLES                       13
    avoid unwanted sentencing disparities. See 18 U.S.C.A. § 3553(a)(6).
    Pointing to the fact that Pyles’s co-defendant, Melodie Hatcher, had
    also been rehabilitated but was sentenced to 37 months’ imprison-
    ment, the Government contends that a variance sentence may be war-
    ranted but that the sentence should be 38 months’ imprisonment —
    one more month than Ms. Hatcher — to reflect Pyles’s greater culpa-
    bility.
    We reject the Government’s argument on this point because
    § 3553(a)(6) is concerned with whether a particular defendant’s sen-
    tence creates a sentencing disparity with all other similarly situated
    federal defendants. In other words, "the kind of ‘disparity’ with which
    § 3553(a)(6) is concerned is an unjustified difference across judges
    (or districts) rather than among defendants to a single case." United
    States v. Boscarino, 
    437 F.3d 634
    , 638 (7th Cir. 2006); cf. United
    States v. Khan, 
    461 F.3d 477
    , 500 (4th Cir 2006) (vacating a variance
    sentence as unreasonable because the district court "focused almost
    exclusively" on imposing a sentence similar to a co-defendant).
    This is not to say that a district court, in imposing a variance sen-
    tence, cannot look to what variances were given co-defendants. A
    court may find such an approach helpful. But the extent of a variance
    will not be unreasonable under § 3553(a)(6) merely because it creates
    a disparity with a co-defendant’s sentence.
    2.
    Other reasons, however, lead us to conclude that the extent of the
    variance was unreasonable. The district court imposed a punishment
    of probation only, rather than a variance sentence of imprisonment,
    because it concluded a sentence of imprisonment would be greater
    than necessary to comply with the sentencing purposes of 18
    U.S.C.A. § 3553(a)(2). In the district court’s view, "federal sentenc-
    ing policy is not purely retributive. It does not mandate warehousing
    individuals who reclaimed their lives long before they were indicted
    and arrested." (J.A. at 147.) Noting all the steps that Pyles had taken
    to change his life and rectify past wrongs, the district court concluded
    that "neither the public, society nor Pyles will benefit from a sentence
    of incarceration." (J.A. at 148.)
    14                       UNITED STATES v. PYLES
    We conclude that in rejecting a sentence of imprisonment, the dis-
    trict court failed to place sufficient weight on "the need for the sen-
    tence imposed . . . to reflect the seriousness of the offense . . . and
    to provide just punishment for the offense," 18 U.S.C.A.
    § 3553(a)(2)(A), in conjunction with "the kinds of sentence . . . estab-
    lished for the applicable category of offense committed by the appli-
    cable category of defendant as set forth in the guidelines," 18
    U.S.C.A. § 3553(a)(4) (emphasis added). In rejecting a sentence of
    imprisonment, the district rejected the Sentencing Commission’s
    judgment that an offense of this kind — one involving crack cocaine
    — is a serious offense that must be punished by a meaningful sen-
    tence of imprisonment.
    "Congress has made a decision to treat crack cocaine dealers more
    severely" than dealers of other drugs, such as powder cocaine. 
    Eura, 440 F.3d at 633
    . To effectuate this decision, the Guidelines have
    established base offense levels that require imprisonment even for the
    smallest quantity of crack cocaine.7 The district court did not, how-
    ever, attribute to Pyles the smallest quantity of crack cocaine, and
    Pyles did not commit the least serious crack cocaine offense. The dis-
    trict court determined without objection by Pyles that he was responsi-
    ble for 26.4 grams of crack cocaine, an amount that, if proven to a
    jury, carries a significant statutory penalty. In fact, if Pyles had
    pleaded guilty to an indictment count charging this amount, he would
    have been subject to a mandatory minimum of 5 years’ imprisonment.
    See 21 U.S.C.A. § 841(b)(1)(B). Further, the district court recognized
    7
    For example, the lowest guideline base offense level available for a
    criminal offense involving crack cocaine is 12. See U.S. Sentencing
    Guidelines Manual § 2D1.1(c)(14) (assigning a base offense level of 12
    for less than 250 milligrams of cocaine base). Even if Pyles had been
    attributed the smallest quantity of crack cocaine and was given a two-
    level reduction for acceptance of responsibility (a three-level reduction
    is not available for offense levels under 16), with his criminal history he
    would still fall within Zone C, which, under the Guidelines, does not
    allow for a sentence of probation. See U.S. Sentencing Guidelines Man-
    ual § 5B1.1 cmt. n.2 ("Where the applicable guideline range is in Zone
    C or D of the Sentencing Table . . . , the guidelines do not authorize a
    sentence of probation."). Thus, in imposing a variance of sixteen offense
    levels, the district court had to dip below the lowest offense level estab-
    lished for the least serious crack cocaine offense.
    UNITED STATES v. PYLES                           15
    that the seriousness of Pyles’s offense was not adequately reflected in
    the charge to which he pleaded guilty. Pyles did not only aid and abet
    the distribution of crack cocaine, he acted as a supplier for his co-
    defendants and allowed them to complete drug transactions in his
    home.
    To be sure, the Guidelines are no longer mandatory, and we recog-
    nize that 21 U.S.C.A. § 841(b)(1)(C), the offense to which Pyles
    pleaded guilty, establishes a statutory sentencing range of 0-20 years’
    imprisonment, thereby authorizing a sentence of probation. Booker
    did not, however, return us to the pre-Guidelines world where a dis-
    trict court had virtually unreviewable sentencing discretion, including
    unreviewable discretion about whether to impose imprisonment at all.
    District courts must still consult the Guidelines when determining a
    sentence, 
    Booker, 543 U.S. at 264
    , and our review of a sentence’s rea-
    sonableness in light of the § 3553(a) factors is informed by the Guide-
    lines because they embody many of Congress’s stated objectives in
    § 3553(a), United States v. Johnson, 
    445 F.3d 339
    , 343 (4th Cir.
    2006). In other words, some variance sentences, no matter how metic-
    ulously arrived at, are unreasonable by virtue of their failure to
    advance the purposes of sentencing stated in § 3553(a). See United
    States v. Martin, 
    455 F.3d 1227
    , 1237 (11th Cir. 2006) ("There [are]
    sentences outside the range of reasonableness that do not achieve the
    purposes of sentencing stated in § 3553(a) and that thus the district
    court may not impose.").
    The fact that under the Guidelines the lowest base offense level for
    crack cocaine distribution does not authorize a sentence of probation
    within the range of sentences available indicates that it is a serious
    offense requiring a serious punishment of incarceration. In this case,
    which involved a not insubstantial amount of crack cocaine, the dis-
    trict court’s imposition of a sentence of probation rather than incarcer-
    ation does not "reflect[ ] . . . the offense’s seriousness . . . ." 
    Eura, 440 F.3d at 633
    .
    This is not to say that a sentence of probation is per se unreason-
    able in crack cocaine distribution cases or that a sentence of probation
    can never be reasonable when the Guidelines call for imprisonment.
    Such a sentence may be reasonable, for example, when the quantity
    of crack cocaine is small, resulting in a low guideline offense level
    16                       UNITED STATES v. PYLES
    that requires a variance of only one or two offense levels to fall within
    guideline Zone B. But the facts of this case — largely centering on
    Pyles’s extraordinary rehabilitation — do not justify this variance sen-
    tence.8 Pyles has done precisely what the law expects: he has stopped
    committing crimes. Although this fact may be extraordinary in that it
    is unusual, it does not authorize "a get-out-of-jail-free card." 
    Martin, 455 F.3d at 1238
    . In light of the seriousness of Pyles’s crack cocaine
    distribution offense, a sentence of probation does not comply with
    Congress’s direction that a sentence "reflect the seriousness of the
    offense . . . and . . . provide just punishment for the offense." 18
    U.S.C.A. § 3553(a)(2)(A).
    III.
    We do not question the district court’s determination that Pyles’s
    8
    We note that a majority of the published opinions of our sister courts
    of appeals have held sentences of probation, or sentences tantamount to
    probation, to be unreasonable when the Guidelines have called for mean-
    ingful sentences of incarceration. See United States v. Davis, 
    458 F.3d 491
    , 500 (6th Cir. 2006) (vacating a sentence of 1 day imprisonment
    when the advisory guideline range was 30-37 months’ imprisonment);
    United States v. Martin, 
    455 F.3d 1227
    , 1239 (11th Cir. 2006) (vacating
    a sentence of 7 days’ imprisonment when the advisory guideline range
    was 108-135 months’ imprisonment); United States v. Crisp, 
    454 F.3d 1285
    , 1290-91 (11th Cir. 2006) (vacating a sentence of 5 hours’ impris-
    onment when the post-departure range was 6-12 months’ imprisonment);
    United States v. Robinson, 
    454 F.3d 839
    , 843 (8th Cir. 2006) (vacating
    a sentence of probation when the advisory guideline range was 63-78
    months’ imprisonment); United States v. Cage, 
    451 F.3d 585
    , 596 (10th
    Cir. 2006) (vacating a sentence of 6 days’ imprisonment when the advi-
    sory guideline range was 46-57 months’ imprisonment); United States v.
    Gall, 
    446 F.3d 884
    (8th Cir. 2006) (vacating a sentence of probation
    when the advisory guidelines range was 30-37 months’ imprisonment);
    cf. United States v. Hampton, 
    441 F.3d 284
    (4th Cir. 2006) (vacating a
    variance sentence of probation as procedurally unreasonable). But see
    United States v. Wadena, 
    470 F.3d 735
    , 739-40 (8th Cir. 2006) (affirm-
    ing a variance sentence of probation when the advisory guideline range
    was 18-24 months’ imprisonment); United States v. Husein, 
    478 F.3d 318
    , 340 (6th Cir. 2007) (affirming a departure sentence of 1 day impris-
    onment when guideline range was 37-46 months’ imprisonment).
    UNITED STATES v. PYLES                       17
    post-offense efforts to turn around his life have been extraordinary.
    It is unavoidable, however, that crime has consequences. Because
    Pyles’s crack cocaine distribution offense is a serious crime that must
    be punished by a sentence of imprisonment, we conclude that his vari-
    ance sentence of 5 years’ probation is unreasonable, but that conclu-
    sion should not be taken as a statement that no variance sentence is
    warranted. We therefore vacate his sentence and remand for resen-
    tencing.
    VACATED AND REMANDED