United States v. Carter ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 05-50303
v.  D.C. No.
ANDREW LEE CARTER, Jr., CR 02-0904 WJR
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 05-50321
Plaintiff-Appellee,
v.  D.C. No.
CR 02-1215 WJR
ANDREW LEE CARTER, Jr.,
OPINION
Defendant-Appellant.

Appeals from the United States District Court
for the Central District of California
William J. Rea and Dale S. Fischer, District Judges,
Presiding*
Argued and Submitted
October 25, 2006—Pasadena, California
Submission Vacated and Deferred October 26, 2006**
Resubmitted June 25, 2008
Filed March 30, 2009
*These cases were reassigned to Judge Fischer on August 9, 2005, due
to the death of Judge Rea.
**Submission of this case was vacated and deferred pending the en
banc court’s decision in United States v. Carty, 520 F.3d 984 (9th Cir.) (en
banc), cert. denied sub nom. Zavala v. United States, 128 S. Ct. 2491(2008).
3821
3822 UNITED STATES v. CARTER
Before: A. Wallace Tashima, Carlos T. Bea, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judges Tashima and Ikuta;***
Dissent in Part by Judge Tashima
***Judge Ikuta authored Part IV of the Discussion section.
UNITED STATES v. CARTER 3825
COUNSEL
Wayne R. Young, Santa Monica, California, for the
defendant-appellant.
Elizabeth R. Yang and Dorothy C. Kim, Assistant United
States Attorneys, Los Angeles, California, for the plaintiff-
appellee.
OPINION
TASHIMA, Circuit Judge, as to Parts I-III:
Andrew Carter was indicted for two bank robberies — the
first on August 1, 2002, in Commerce, California, and the sec-
ond on August 12, 2002, in Pasadena, California. Carter was
charged in both indictments with conspiracy to commit a bank
robbery, in violation of 18 U.S.C. §§ 371 and 2113; armed
bank robbery, in violation of 18 U.S.C. § 2113; and use of a
3826 UNITED STATES v. CARTER
firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c). He was convicted by a jury on all counts and was
sentenced to a 471-month term of imprisonment. Carter
timely appealed.
We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and
28 U.S.C. § 1291. We affirm both convictions, but we vacate
the sentence and remand for resentencing. In determining
Carter’s sentence, the district court failed to make the requi-
site finding that a firearm was brandished. We therefore
vacate the sentence and remand for the district court to make
the requisite findings.
BACKGROUND
I. Factual Background
A. August 1, 2002, Commerce Robbery
The day before the Commerce robbery, Derrick O’Neal
contacted Carter and several others to ask if they wanted to
rob a bank. O’Neal and Edward Warren had chosen the bank
because it was close to the freeway and did not have security
barriers inside. Carter agreed to rob the bank and agreed to
meet the following morning. On the morning of the robbery,
O’Neal, Warren, Eric Washington, Joseph Alexander, and
Edward Hector met at the home of Warren’s mother. O’Neal
testified that Carter was a few hours late to the meeting
because he was trying to get a gun and needed to drop his
girlfriend off somewhere. They planned each person’s role in
the robbery and left for the bank. Carter’s role was to “grab
the money” from the teller because “he was quick.”
Alexander, Carter, Washington, and Hector entered the
bank. O’Neal and Warren remained outside as lookouts.
Washington stayed in the lobby area, Alexander walked
through the bank to watch the back doors, and Carter and
Hector went to the teller counter. When Janet Guizar, a finan-
UNITED STATES v. CARTER 3827
cial services consultant at the bank, saw the men enter, carry-
ing empty bags and spreading out through the bank, she
pressed an alarm. Brenda Lopez, the customer service man-
ager, asked Carter and Hector if she could help them, and they
said they wanted to open new accounts. Lopez seated them at
a desk, and Guizar stated that she would be with them
momentarily.
Guizar then went behind the teller counter, told the branch
manager to call 911, and picked up a phone to call their cor-
porate security office. Hector and Carter rushed over and told
her to hang up the phone. Hector jumped over the teller
counter, pointed his gun at two tellers, and told them to put
money in his bag. The men left and split up the money, which
totaled approximately $3,500.
B. August 12, 2002, Pasadena Robbery
O’Neal contacted Carter on August 11, 2002, and told him
that he and Warren had found another bank to rob and that
Carter should bring a gun. Carter responded that he would try
to find a gun. On the morning of the robbery, O’Neal, War-
ren, Carter, Alexander, and Hector met at Warren’s home.
They were joined by Larry Washington, Jerry Hughes, Koran
Allen, and Cedrick Askew, and they discussed each person’s
role in the robbery.
When they entered the bank, Hughes displayed his gun,
jumped on the teller counter, and demanded the keys. A bank
employee gave Hughes cash from several teller drawers. After
leaving the bank, the men switched vehicles and stopped to
split up the money, which totaled approximately $21,000.
II. Procedural Background
A. Commerce Robbery
On January 9, 2003, an indictment was filed against Wash-
ington and Carter, charging them with conspiracy to commit
3828 UNITED STATES v. CARTER
bank robbery, armed bank robbery, and brandishing a firearm
during a crime of violence. O’Neal and Alexander entered
into plea agreements and testified at both trials. O’Neal
received a sentence of 105 months, and Alexander was sen-
tenced to 125 months.
Carter moved for a judgment of acquittal pursuant to Fed-
eral Rule of Criminal Procedure 29, but the district court
denied the motion. Carter was convicted on all three counts
of the indictment.
B. Pasadena Robbery
Carter, O’Neal, Washington, Hughes, Allen, Askew, and
Alexander were indicted on three counts — conspiracy to
commit bank robbery, armed bank robbery, and brandishing
a firearm during a crime of violence. A nine-day jury trial
commenced on October 14, 2003. On October 15, 2003,
Hughes and Askew entered guilty pleas, and Washington pled
guilty the following day. Allen, Carter, and Hector proceeded
to trial.
Before opening arguments were made, Carter’s attorney,
Scott Furstman, informed the court during a sidebar that there
was a conflict between himself and Carter regarding trial
strategy. Furstman explained the conflict as follows:
I have raised to the court that there may be a con-
flict as developed between Mr. Carter and myself
with regard to the presentation of certain evidence
and the strategy to be relied upon. Mr. Carter has
always been prepared to accept responsibility for
count one and count two — count two not being an
armed bank robbery. I have explained to him the ele-
ments and the fact that he simply can’t plead guilty
to a count that is not charged. That being the case,
however, Mr. Carter, for example, in my opening
statement wanted me to basically admit all elements
UNITED STATES v. CARTER 3829
that would make out the government’s case as to
count one and count two. I don’t believe that is in
Mr. Carter’s best interest at this juncture. I told him
that I would reserve opening statement to see how
the government’s evidence plays out; and if he
believes it is in his best evidence [sic] to present to
the jury an impression that he is guilty of the rob-
beries, so be it. I don’t think it’s in his best interest.
I assume there are other issues that do bear on the
foreseeability aspect with regard to the 924(c) and
Mr. Carter’s desire and it’s his right to testify, poten-
tially. Given the prior conviction that Mr. Carter has
and the fact that he had the prior bank robbery that
didn’t come in, I do not believe that would be in his
best interest either. As I say, that’s his constitutional
right. I can’t prevent him from exercising it. But
there are some other strategies with regard to poten-
tial defense evidence that Mr. Carter and I have dis-
cussed that he may wish me to put forth. Again, I do
not believe it is in his interest.
. . . Your Honor, we have been through another
trial with Mr. Carter. I have appeared before Your
Honor for a long time on many occasions. I don’t
think I’ve ever come before Your Honor and said
that because of this potential conflict and a break-
down because of this difference in terms of trial
strategies and the stakes before Mr. Carter are huge.
Huge. 25 years alone on this one 924(c), so I’m con-
cerned.
Tr. of 10/16/03 Hr’g at 7-9. Carter told the court that Furst-
man “basically said everything I needed to say for the
record.” Furstman “formally” moved to withdraw, and the
court then denied the motion with no explanation or inquiry.
Carter moved for a judgment of acquittal pursuant to Fed-
eral Rule of Criminal Procedure 29, based on the insuffi-
3830 UNITED STATES v. CARTER
ciency of the evidence with respect to the § 924(c) charge.
Furstman argued that Carter did not bring a weapon to the
meeting, that there were only two weapons used during the
robbery, and that neither was used “in direct proximity” to
Carter. He further argued that no weapon was recovered from
Carter and, in fact, no weapon was ever recovered. The court
denied the motion. Carter was convicted on all three counts.
C. Sentencing
Carter was sentenced on April 11, 2005 on both robberies.
Defense counsel, Donald Randolph,1 raised several issues at
the sentencing hearing and in memoranda filed prior to the
hearing. First, he asked the court to exercise its discretion
under United States v. Booker, 543 U.S. 220 (2005), to
impose the statutory minimum sentence of 360 months. He
cited numerous personal hardships Carter had endured
throughout his life, such as the lack of a relationship with his
father, his mother’s inability to provide “basic food, utilities,
electricity,” Carter’s attempts as a youth to provide for his
family, and his placement in a group home.
Randolph further disputed the number of criminal history
points Carter was assessed. Carter received one point for a
2000 charge of possession of narcotics that resulted in diver-
sion. In 2002, Carter was stopped for driving without lights,
and he lied about his identity to the officer, resulting in one
point for a charge of giving false information to a peace offi-
cer, for which he received summary probation. Carter then
received two additional criminal history points because the
robberies were committed while his diversion was revoked on
the narcotics charge and while he was on probation on the
false information charge, resulting in four points, which estab-
lished a criminal history category of III.
1
On May 14, 2004, the court relieved Furstman and appointed Donald
Randolph to represent Carter.
UNITED STATES v. CARTER 3831
Randolph argued that the two additional points for being on
summary probation overstated the seriousness of Carter’s past
conduct. He therefore asked the court to give Carter only two
criminal history points, which would result in a criminal his-
tory category of II. He also argued that the one point given for
the misdemeanor of giving false information overstated the
seriousness of Carter’s criminal history and asked the court to
place him in criminal history category I. He later pointed out
that Carter’s narcotics offense involved the possession of less
than one gram of cocaine. Randolph attempted to raise the
argument that there was no finding that the firearm was bran-
dished, which he had raised in his briefs, but the court refused
to allow him to argue the issue.
After hearing the arguments regarding Carter’s personal
background, criminal history category, and potential sentence,
the district court stated that the total guideline range was 471-
492 months, which was the range calculated by the Presen-
tence Report. The court sentenced Carter to 60 months on
each count one conviction, 87 months on each count two con-
viction, to be served concurrently, and 84 months on count
three of the Commerce robbery and 300 months on count
three of the Pasadena robbery, both to be served consecu-
tively, resulting in an aggregate sentence of 471 months.
DISCUSSION
I. Use of a Firearm
Carter contends that the district court erred in denying his
motion for judgment of acquittal on the use of a firearm
count. The denial of a motion for judgment of acquittal is
reviewed de novo. United States v. Allen, 425 F.3d 1231,
1234 (9th Cir. 2005). In reviewing a conviction for suffi-
ciency of the evidence, we “must determine ‘whether, after
viewing the evidence in the light most favorable to the prose-
cution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ ” United
3832 UNITED STATES v. CARTER
States v. Sanders, 421 F.3d 1044, 1049 (9th Cir. 2005) (quot-
ing United States v. Segura-Gallegos, 41 F.3d 1266, 1268
(9th Cir. 1994) (emphasis in original)).
[1] There is no dispute that Carter himself did not use a
firearm during the robbery. The question, accordingly, is
whether it could be “reasonably foreseen as a necessary or
natural consequence of the unlawful agreement” that one of
Carter’s coconspirators would use a firearm during the rob-
bery. Pinkerton v. United States, 328 U.S. 640, 648 (1946).
[1] Although Carter is correct that the evidence indicated
that he was late to the meeting at which the robbery was
planned, the government need not establish that Carter had
actual knowledge that guns would be used. Rather, “[t]he
touchstone is foreseeability.” United States v. Hoskins, 282
F.3d 772, 776 (9th Cir. 2002). “[I]t is reasonable to infer from
the nature of the plan — the overtaking of a bank by force and
intimidation — that guns would be used.” Allen, 425 F.3d at
1234. “Drawing all inferences in favor of the government,”
Hoskins, 282 F.3d at 777, it was foreseeable that a gun would
be used in the bank robbery. The district court did not err in
denying Carter’s motion for judgment of acquittal on the use
of a firearm count.
II. Denial of Motion to Withdraw
[3] Carter’s second contention is that the district court
abused its discretion in denying the motion to withdraw
brought by Furstman. In determining whether an irreconcil-
able conflict existed between Carter and Furstman, we con-
sider “(1) the adequacy of the district court’s inquiry; (2) the
extent of any conflict; and (3) the timeliness of the motion.”
United States v. McKenna, 327 F.3d 830, 843 (9th Cir. 2003).
The district court’s denial of counsel’s motion to withdraw is
reviewed for an abuse of discretion. LaGrand v. Stewart, 133
F.3d 1253, 1269 (9th Cir. 1998).
UNITED STATES v. CARTER 3833
[4] The district court denied the motion to withdraw with-
out explanation. However, the court listened to Furstman’s
description of the conflict and heard Carter state that he had
nothing to add. Moreover, the conflict appeared to be based
on trial strategy. A conflict that is based solely on “disputes
regarding trial tactics” generally is not the type of conflict that
warrants substitution of counsel. McKenna, 327 F.3d at 844.
The record indicates that the conflict here was not as egre-
gious as those we have held support granting a motion to sub-
stitute. See, e.g., United States v. Adelzo-Gonzalez, 268 F.3d
772, 779 (9th Cir. 2001) (finding an irreconcilable conflict
where the client recounted “threats made by his attorney”
against him, and the attorney “expressly called [the client] a
liar on two separate occasions”); United States v. Moore, 159
F.3d 1154, 1160 (9th Cir. 1998) (stating that the attorney “re-
lated that he was conflicted because Moore had threatened to
sue him and had physically threatened him,” and Moore
expressed an inability to communicate and dissatisfaction
with counsel’s handling of a plea bargain).
[5] Further, the motion in this case was made on the day
that opening statements were to be made, which was the third
day of trial. Although “[t]he fact that the motion was made on
the eve of trial alone is not dispositive,” Adelzo-Gonzalez, 268
F.3d at 780, there is no indication that another lawyer was
ready, and the jury already had been empaneled. In these cir-
cumstances, the denial of the motion was not an abuse of dis-
cretion.
III. Sentencing: Brandishing a Firearm
[6] Carter contends the district court erred by sentencing
Carter to a seven-year mandatory minimum sentence for bran-
dishing a firearm in the first bank robbery because there was
no finding that a firearm was “brandished.” Title 18 U.S.C.
§ 924(c) “provides a three-tier sentencing framework, increas-
ing the mandatory minimum sentence in correlation to the
severity of the firearm’s involvement with the crime.” United
3834 UNITED STATES v. CARTER
States v. Beaudion, 416 F.3d 965, 968 (9th Cir. 2005). The
statute imposes a minimum five-year sentence for “use” of a
firearm during a crime of violence, and a seven-year mini-
mum if the firearm is “brandished.” 18 U.S.C. § 924(c)(1)(A).
A firearm is brandished if the district court finds: (1) “the
open display of the firearm, or knowledge of the firearm’s
presence by another in some manner” for (2) “the purpose of
intimidation.” Beaudion, 416 F.3d at 968. The key difference
between simple “use” of a firearm and “brandishing” the fire-
arm is that “use” is not limited to a purpose of intimidation.
Id. at 969.
[7] The record in this case is not clear whether the district
court found a firearm was brandished, rather than merely used
by an accomplice. When asked by government counsel
whether the district court “found by a preponderance of the
evidence that a firearm was brandished in both robberies,” the
district court responded, “Yes, a firearm was present.” The
language used by the district court is ambiguous: by stating,
“Yes,” the district court may have found a firearm was bran-
dished, but by stating “a firearm was present,” the district
court may have instead found a firearm was merely “used”
rather than brandished. Because it is unclear whether the dis-
trict court found the firearm was brandished, we must vacate
the seven-year sentence and remand for re-sentencing on the
charge of violation of 18 U.S.C. § 924(c). The trial judge,
rather than this court, is in a better position to make the deter-
mination whether the firearm was “used” or “brandished.”
The trial judge must make this determination and state it
clearly on the record.
IKUTA, Circuit Judge, as to Part IV:
IV
Sentencing: Booker and 18 U.S.C. § 3553 Considerations
Under the Supreme Court’s guidance in Rita v. United
States, 127 S. Ct. 2456 (2007) and Ninth Circuit case law, the
UNITED STATES v. CARTER 3835
district court’s explanation of its sentence, although brief, was
adequate in context. Moreover, under the Supreme Court’s
guidance in Gall v. United States, 128 S. Ct. 586 (2007), the
district court did not abuse its discretion by imposing a
within-Guidelines sentence.
A
After two separate jury trials before the same judge, Carter
was convicted of two counts of armed bank robbery, two
counts of conspiracy, and two counts of use of a firearm dur-
ing a crime of violence. The same district court judge consoli-
dated sentencing and held a sentencing hearing on April 11,
2005. Before the hearing, the parties had the opportunity to
review the Presentence Report (PSR), and both submitted
objections to the report that were documented in an adden-
dum.
The district court commenced the sentencing hearing by
stating, “I’ve read the presentence report, the addendum to the
presentence report and all the other things that go with it.”
The court then solicited comments from Carter’s attorney,
Donald Randolph, who reiterated the arguments he had made
in response to the PSR. Randolph noted that Carter lacked
youthful guidance and that his childhood and young adult-
hood had been difficult. Randolph also reiterated his argu-
ment that the PSR over-represented the seriousness of
Carter’s criminal history. He urged the court to disregard two
criminal history points (imposed because Carter had been on
summary probation when the bank robberies had occurred),
and then “to go one step further” to discount another criminal
history point (for a misdemeanor charge for failing to provide
truthful information to a police officer).
In opposition, the government argued that Carter had been
given “multiple opportunities . . . to not commit further
crimes” and that Carter participated in the first bank robbery
less than one month into his probation. The government
3836 UNITED STATES v. CARTER
asserted that the two points assessed in his criminal history
category for committing the crimes on probation “are abso-
lutely warranted in this case, and if the court does not impose
that point, as the government points out in his papers it’s in
essence telling the defendant it is okay not to comply with
prior court orders.” In addition to noting the court’s discretion
under United States v. Booker, 543 U.S. 220 (2005), the gov-
ernment addressed the factors the court was required to con-
sider under 18 U.S.C. § 3553(a).2 The government asserted
2
18 U.S.C. § 3553(a) provides:
(a) Factors To Be Considered in Imposing Sentence.— The court
shall impose a sentence sufficient, but not greater than necessary,
to comply with the purposes set forth in paragraph (2) of this sub-
section. The court, in determining the particular sentence to be
imposed, shall consider—
(1) the nature and circumstances of the offense and the his-
tory 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
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and 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
section 994(a)(1) of title 28, United States Code, subject
to any amendments made to such guidelines by act of
UNITED STATES v. CARTER 3837
that after taking into account the Guidelines, the history and
characteristics of the defendant, the seriousness of the offense,
the goals of promoting respect for the law and deterrence, and
the need to avoid sentencing disparity, a downward departure
from the Guidelines was not warranted. In discussing these
factors, the government noted that the court had presided over
both of Carter’s trials, and so was aware that the crimes Carter
committed were serious and violent.
Congress (regardless of whether such amendments have
yet to be incorporated by the Sentencing Commission
into amendments 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) or title 28, United States Code, taking into
account any amendments made to such guidelines or pol-
icy statements by act of Congress (regardless of whether
such amendments have yet to be incorporated by the Sen-
tencing 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 incorporated 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.[1]
(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.
3838 UNITED STATES v. CARTER
After hearing both parties’ arguments, the court asked Car-
ter if he wished to address the court. Carter declined. The
court stated: “Well in view of the fact that the Sentencing
Guidelines are advisory only, I will still use them though in
considering of the sentence I’m about to impose.” The district
court then outlined and explained the Guidelines sentencing
range for the two convictions. In sum, the Guidelines sentenc-
ing range for all counts was 471 to 492 months. The court
stated that “[p]ursuant to the Sentencing Reform Act, which
is advisory,” it would impose a sentence of 471 months, the
low end of the Guidelines. The court delineated the term of
supervised release and the conditions of such release.
Finally, the district court stated, “Now the justification for
this sentence is as follows.” The court proceeded to explain:
This 24 year old defendant is before the court for
sentencing after being convicted by a jury trial for
armed bank robbery, conspiracy, and the accompa-
nying 18 U.S.C. 924C count in 2 criminal proceed-
ings and 2 armed bank robberies.
The defendant has 3 convictions for disturbing the
peace, possession of a narcotic controlled substance
and false information to a peace officer.
Defendant is subject to a 7 year mandatory sen-
tence to be served consecutively to the Guideline
sentence pursuant to 18 U.S.C. section 924C and a
25 year mandatory sentence for a second conviction
under 18 U.S.C. 924C to be served consecutively to
the Guideline sentence in the first 18 U.S.C. 924C
conviction.
The low end sentence has been recommended and
ordered as the Guidelines have adequately taken into
consideration defendant’s actions and criminal his-
tory.
UNITED STATES v. CARTER 3839
The lengthy sentence is sufficiently punitive and
hopefully will deter against any further criminal
activity.
The maximum term of supervised release will
allow time for the defendant to maximize his restitu-
tion payments and to be monitored within the com-
munity.
The out-patient drug treatment condition is recom-
mended because of defendant’s prior drug-related
conviction.
The psychological/psychiatric treatment condition
is also recommended because of the defendant’s
admitted history of counseling for emotional issues.
The defendant has 2 minor children.
After the court imposed the sentence, the government asked:
And finally with regard to the sentence the court has
imposed including the Guideline calculations, the
advisory guidelines calculations and the mandatory
minimum, has the court found that this sentence is
reasonable taking into account all the factors and the
purposes set forth in 18 U.S.C. § 3553(a)?
The court responded, “Yes. I found my sentence to be reason-
able.”
B
Carter argues the record fails to establish that the district
court exercised its sentencing discretion under Booker
because the court did not adequately discuss the sentencing
factors it must consider under 18 U.S.C. § 3553(a) as they
applied to Carter, and because the court did not directly
3840 UNITED STATES v. CARTER
address Carter’s arguments. As a result, Carter contends, the
record is insufficient for us to determine whether Carter’s sen-
tence was reasonable. The Supreme Court’s analysis in Rita,
127 S.Ct. 2456, and our decision in United States v. Carty,
520 F.3d 984 (9th Cir. 2008) (en banc), cert. denied sub nom.
Zavala v. United States, 128 S. Ct. 2491 (2008), make clear
that the district court in this case adequately established the
basis for its sentencing decision.
[8] When a district court imposes a within-Guidelines sen-
tence, the explanation of its decision-making process may be
brief: “[W]hen a judge decides simply to apply the Guidelines
to a particular case, doing so will not necessarily require
lengthy explanation.” Rita, 127 S. Ct. at 2468. In Rita, the
defendant had argued for a sentence lower than the minimum
recommended Guidelines sentence on the grounds that his
health, fear of retaliation, and military record warranted
leniency beyond what was contemplated by the Guidelines.
Id. at 2469. After hearing both Rita’s and the government’s
arguments, the district court stated that it was “unable to find
that the [report’s recommended] sentencing guideline range
. . . is an inappropriate guideline range for that, and under
3553 . . . the public needs to be protected if it is true, and I
must accept as true the jury verdict.” Id. at 2462 (alterations
in original). When sentencing Rita at the low end of the
Guidelines range, the district court stated that such a sentence
was “appropriate.” Id.[9] The Supreme Court held that because “[t]he record
makes clear that the sentencing judge listened to each argu-
ment” and “considered the supporting evidence,” the district
court’s statement of reasons for the sentence was “brief but
legally sufficient.” Id. at 2469. The district court had no obli-
gation to spell out its conclusion that the Guidelines’ range
was suitable for this sort of case. Rather, “[w]here a matter is
as conceptually simple as in the case at hand and the record
makes clear that the sentencing judge considered the evidence
UNITED STATES v. CARTER 3841
and arguments,” the Court did “not believe the law requires
the judge to write more extensively.” Id.We reached a similar conclusion in Carty, where the defen-
dant argued that the district court committed procedural error
because it “did not affirmatively state that it considered the
§ 3553(a) factors.” Carty, 520 F.3d at 995-96. We rejected
Carty’s arguments for three reasons. First, we stated that “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.” Id. at 996
(citing Kimbrough v. United States, 128 S. Ct. 558, 574
(2007) (internal quotation marks omitted)). Second, we noted
that “the judge stated that he reviewed the papers; the papers
discussed the applicability of § 3553(a) factors; therefore, we
take it that the judge considered the relevant factors.” Id. (cit-
ing Rita, 127 S. Ct. at 2467). Third, we stated that “sentencing
took place after Booker, and the parties’ memoranda pro-
ceeded 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.” Id.[10] The guidance provided by Rita and Carty makes clear
that the district court adequately explained the sentence
imposed on Carter. As the Supreme Court has explained, the
context in which a district court issues a sentence is impor-
tant. Rita, 127 S. Ct. at 2469. Here, as in Rita and Carty, the
district court was familiar with Carter’s crimes, personal situ-
ation, and both the government’s and Carter’s arguments
regarding sentencing. The district court judge had presided
over both of Carter’s trials. At sentencing, the court stated that
it had read and considered the PSR and the addendum. The
court also listened to Carter’s request for a reduction of his
sentence in light of factors relevant under § 3553(a), including
his lack of youthful guidance, his difficult family history, and
his argument that his criminal history was over-represented.
3842 UNITED STATES v. CARTER
[11] After giving the parties an opportunity to make their
arguments about what sentence should be imposed on Carter,
the district court explained both the sentence and the justifica-
tion for its decision to impose a within-Guidelines sentence.
In providing this explanation, the district court addressed
many of the § 3553(a) factors. The court recited the Guide-
lines recommendation, Carter’s criminal history category, and
the applicable mandatory statutory sentences. See 18 U.S.C.
§ 3553(a)(3), (a)(4)(A) (court to consider “the kinds of sen-
tences available” and “the kinds of sentence and the sentenc-
ing range established for the applicable category of offense
committed by the applicable category of defendant as set forth
in the guidelines”). The court acknowledged Carter’s convic-
tions for two armed bank robberies, two counts of conspiracy,
and two firearm offenses; his three prior convictions; his age;
his emotional issues and past drugs use; and the fact that he
had two children and potential child support obligations. See
id. § 3553(a)(1) (court to consider the “nature and circum-
stances of the offense and the history and characteristics of
the defendant”). The court stated that “the Guidelines have
adequately taken into consideration defendant’s actions and
criminal history.” See id. The court explained that “[t]he
lengthy sentence is sufficiently punitive and hopefully will
deter against any further criminal activity.” See id.
§ 3553(a)(2)(A), (B) (court to consider the need for the sen-
tence imposed “to provide just punishment for the offense”
and “to afford adequate deterrence to criminal conduct”). The
court also noted that the sentence included outpatient drug
treatment and psychological or psychiatric treatment to
address Carter’s prior drug use and prior emotional issues. See
id. § 3553(a)(2)(D) (court to consider the need for the sen-
tence imposed “to provide the defendant with needed . . .
medical care, or other correctional treatment”). The court
stated that “the maximum term of supervised release will
allow time for the defendant to maximize his restitution pay-
ments and to be monitored within the community.” See id.
§ 3553(a)(2)(C), (a)(7) (court to consider the need for the sen-
tence imposed “to protect the public from further crimes of
UNITED STATES v. CARTER 3843
the defendant” and “to provide restitution to any victims of
the offense”). Finally, the district court affirmed that it was
choosing not to exercise its discretion to depart from the
Guidelines based on Carter’s argued over-representation of
criminal history.
[12] In context, these statements make clear that the district
court heard and considered Carter’s arguments, considered the
§ 3553(a) factors, and reached the conclusion that the Guide-
lines range was suitable to Carter’s case. Under Rita and
Carty, this is sufficient.
[13] Carter further argues that the sentence is procedurally
flawed because the district court did not directly address Car-
ter’s arguments and give reasons for declining to accept those
arguments. We rejected this argument in Carty, and the same
reasoning applies here. In Carty, the defendant argued that he
merited special leniency because, among other things, he
“was a breadwinner for his family with no criminal history;
he stopped drinking as a young man; he had a strong family
relationship; and he had an underprivileged upbringing and
diminished capacity to understand fully the world around
him.” Carty, 520 F.3d at 990. The district court imposed a
sentence at the low end of the Guidelines range rather than the
even lower sentence sought by the defendant. We held that,
although the district court “gave no explicit reasons” for
rejecting Carty’s arguments and imposing a within-Guidelines
sentence, the court had said enough in the context of that case
given that the district judge had presided over Carty’s trial,
reviewed the PSR and the parties’ submissions, and listened
to argument by both parties at the sentencing hearing. Id.; see
also Rita, 127 S. Ct. at 2469 (holding that there is no proce-
dural error where a sentencing judge could have “added
explicitly that he had heard and considered the evidence and
argument[s]” but the “context and the record [made] clear that
. . . similar[ ] reasoning underlies the judge’s conclusion.”);
United States v. Perez-Perez, 512 F.3d 514, 516-17 (9th Cir.
2008) (rejecting defendant’s contention of procedural error
3844 UNITED STATES v. CARTER
because sentencing judge did not “expressly address [his] spe-
cific arguments” regarding the seriousness of prior conviction,
alleged racial profiling, prior drug addiction, and special fam-
ily circumstances where the record reflected that the judge lis-
tened to them). These cases confirm that the district court here
had no obligation to address and resolve each of Carter’s
arguments on the record.
The dissent attempts to distinguish these cases on the
ground that the defendants’ arguments in Rita and Carty were
straightforward and uncomplicated, and because in Rita, the
district court asked the defendant numerous questions about
sentencing issues. These distinctions are unpersuasive. The
dissent does not explain the nature of the alleged complexity
in Carter’s argument, and we detect none. Carter merely
argued that his prior convictions were insufficiently serious to
merit the criminal history category to which he was assigned,
and that his underprivileged upbringing constituted a special
circumstance for which a below-Guidelines sentence was
warranted. These arguments are frequently made and easily
understood by a district court. They are no more complex than
the arguments made by the defendant in Rita regarding the
special circumstances of his health, fear of retaliation, and
military record; by the defendant in Carty regarding his his-
tory and characteristics; or by the defendant in Perez-Perez
regarding the overstated seriousness of his prior offense,
alleged racial profiling, prior drug addiction, and special fam-
ily circumstances. Indeed, Carter’s counsel acknowledged that
“I am sure the court is very familiar with requests for over-
designation of criminal categories under circumstances like
this.”
[14] Nor was the district court obliged to engage the defen-
dant in questions or further discussion, because it is clear
from the context that the defense’s arguments were heard. See
Carty, 520 F.3d at 995 (holding that the district court said
enough at sentencing where it indicated it had reviewed the
PSR and the sentencing memoranda and heard from the
UNITED STATES v. CARTER 3845
defense’s witnesses and counsel). Because the record and
context make clear that the judge “considered the evidence
and arguments,” Rita, 127 S. Ct. at 2469, the district court
made no procedural error in imposing a within-Guidelines
sentence.
C
Finally, Carter contends he was prejudiced by the district
court’s failure to consider the § 3553(a) factors because, as a
result of the district court’s procedural error, his sentence was
“greater than necessary,” 18 U.S.C. § 3553(a), to meet the
purposes of the Sentencing Reform Act. Carter argues that his
sentence was greater than necessary because it exceeded sen-
tences for other federal crimes, resulted in unwarranted sen-
tencing disparities with his co-conspirators, and did not take
into account his difficult life circumstances. The dissent
understands this argument as challenging the reasonableness
of Carter’s sentence and would hold that Carter’s sentence is
substantively unreasonable. However, none of the issues
raised by Carter or the dissent makes Carter’s within-
Guidelines sentence substantively unreasonable, particularly
in light of the deference we owe to the district court’s sen-
tencing decisions and the absence of anything out of the ordi-
nary in Carter’s circumstances.
We consider the substantive reasonableness of a sentence
under an abuse-of-discretion standard. Gall, 128 S. Ct. at 597.
The Supreme Court has directed us to give substantial defer-
ence to the district court’s determination because it is better
situated than we are to determine an appropriate sentence. As
the Court explained,
[T]he sentencing judge is in a superior position to
find facts and judge their import under § 3553(a) in
the individual case. The judge sees and hears the evi-
dence, makes credibility determinations, has full
knowledge of the facts and gains insights not con-
3846 UNITED STATES v. CARTER
veyed by the record. The sentencing judge has
access to, and greater familiarity with, the individual
case and the individual defendant before him than
the Commission or the appeals court. Moreover, dis-
trict courts have an institutional advantage over
appellate courts in making these sorts of determina-
tions, especially as they see so many more Guide-
lines sentences than appellate courts do.
Id. at 597-98 (internal citations, alterations, and quotation
marks omitted). In light of this institutional advantage, “[t]he
fact that the appellate court might reasonably have concluded
that a different sentence was appropriate is insufficient to jus-
tify reversal of the district court.” Id. at 597. We have held
that “a correctly calculated Guidelines sentence will normally
not be found unreasonable on appeal.” Carty, 520 F.3d at 988.
Although the district court could have exercised its discretion
to impose a below-Guidelines sentence, the dissent points to
no unusual circumstances that make it an abuse of discretion
for the district court not to have done so here.
[15] None of the issues identified by Carter supports the
conclusion that the district court abused its discretion in
imposing the within-Guidelines sentence. First, Carter con-
tends that his sentence is unreasonable because it was greater
than sentences that would be imposed for other federal crimes
such as airplane hijacking, espionage, or the like. To the
extent Carter is making a challenge under the Equal Protec-
tion Clause to classifications created by Congress, it is well
established that any sentencing disparities between federal
crimes do not create suspect classifications, and are therefore
subject to rational basis review. See, e.g., United States v.
Ellsworth, 456 F.3d 1146, 1149 (9th Cir. 2006); United States
v. Harding, 971 F.2d 410, 412 (9th Cir. 1992). Carter was
convicted of, and sentenced for, two counts each of conspir-
acy, armed bank robbery, and use of a firearm during a crime
of violence, all while on probation. Congress could rationally
decide to penalize recidivists and offenders who have com-
UNITED STATES v. CARTER 3847
mitted multiple crimes more severely than first-time offenders
and offenders who have committed a single crime. See, e.g.,
United States v. Ruiz-Chairez, 493 F.3d 1089, 1092 (9th Cir.
2007) (“[A]sking whether another crime is inherently more
dangerous than illegal reentry misses the point. To survive
rational basis review, the key question is whether the criminal
reentry [sentence] enhancement bears some rational relation
to a legitimate government interest or purpose.” (emphasis
added)); United States v. Clawson, 831 F.2d 909, 915 (9th
Cir. 1987) (“[A] statute is not rendered irrational simply
because Congress knew about other crimes and did not make
them subject to enhancement. The courts do not substitute
their views about a statute’s wisdom for those of Congress
unless the statute is arbitrary.”). Because “[t]he burden falls
on the party attempting to disprove the existence of a rational
relationship between a statutory classification and a govern-
ment objective,” Harding, 971 F.2d at 413, and because Car-
ter has not carried this burden, this argument fails.
[16] Second, Carter claims that the disparity between the
sentence he received and those received by his co-
conspirators was unwarranted. This argument fails because
none of these co-conspirators was similarly situated to Carter.3
See, e.g., United States v. Gonzales-Perez, 472 F.3d 1158,
1162 (9th Cir. 2007) (analyzing disparate sentence of co-
defendant under 3553(a)(6) and concluding that the disparity
was warranted because the co-defendant “was processed
under a ‘fast-track’ procedure, and was charged with violating
3
Carter was convicted of two bank robberies in two separate jury trials.
Of Carter’s nine co-conspirators, only four (O’Neal, Warren, Alexander
and Hector) participated in both bank robberies. Of these four, O’Neal and
Alexander elected to plead guilty to two counts of bank robbery, one count
of conspiracy, and one count of use of a firearm. They testified against
Carter at trial and were sentenced to 105 months and 125 months in
prison, respectively. Warren was charged with being an accessory after the
fact in one of the robberies, and pleaded guilty. Hector was convicted for
the Pasadena robbery after a jury trial; however, the government did not
prosecute him for the Commerce robbery.
3848 UNITED STATES v. CARTER
a different statute”); United States v. Monroe, 943 F.2d 1007,
1017 (9th Cir. 1991) (holding the district court did not err in
imposing disparate sentences on co-defendants because,
among other things, the co-defendants were not found guilty
of the same offenses and thus were not similarly situated);
United States v. Changa, 901 F.2d 741, 743-44 (9th Cir.
1990) (holding the district court was justified in imposing dif-
ferent sentences on defendants who were convicted of differ-
ent crimes). Carter himself recognized that one reason for the
disparity between his sentence and that of two of his co-
conspirators was due to their decision to cooperate with the
government. However, a sentencing disparity based on coop-
eration is not unreasonable. It is settled that so long as there
is “no indication the defendant has been retaliated against for
exercising a constitutional right, the government may encour-
age plea bargains by affording leniency to those who enter
pleas. Failure to afford leniency to those who have not dem-
onstrated those attributes on which leniency is based is
unequivocally . . . constitutionally prop[er].” United States v.
Narramore, 36 F.3d 845, 847 (9th Cir. 1994) (citing Corbitt
v. New Jersey, 439 U.S. 212, 223-24 (1978) (alterations in
original) (internal quotation marks omitted)). Therefore, any
disparities between Carter’s sentence and those of his co-
conspirators do not make Carter’s sentence substantively
unreasonable.
[17] Third, Carter argues that the difficult circumstances of
his life make his within-Guidelines sentence unreasonable.
The dissent further notes that Carter’s offenses were minor
and his criminal history category was increased by minor
issues. In context, these factors do not make Carter’s sentence
substantively unreasonable. Carter conspired to commit and
participated in two armed bank robberies in two weeks. He
knew that guns would be used, actively helped subdue the
victims, and shared in the profits. Carter suffered difficulties
in his life and his prior offenses were non-violent, but nothing
in these circumstances is so atypical as to put him outside the
“minerun of roughly similar” cases considered by the Sen-
UNITED STATES v. CARTER 3849
tencing Commission in formulating the Guidelines, nor are
they “so special as to render [his] overall sentence unreason-
able.” United States v. Stoterau, 524 F.3d 988, 1002 (9th Cir.
2008). Therefore the district court did not abuse its discretion
in sentencing Carter.
CONCLUSION
For the foregoing reasons, Carter’s convictions are
AFFIRMED. The seven-year sentence for brandishing a fire-
arm is VACATED and REMANDED for the district court to
determine whether the firearm was brandished for purposes of
18 U.S.C. § 924(c)(1)(A).
TASHIMA, Circuit Judge, dissenting, in part:
When we review a sentence, “we first consider whether the
district court committed significant procedural error, then we
consider the substantive reasonableness of the sentence.”
United States v. Carty, 520 F.3d 984, 993 (9th Cir.) (en banc),
cert. denied sub nom. Zavala v. United States, 128 S. Ct. 2491(2008). The district court commits “significant procedural
error” by “failing to consider the § 3553(a) factors” or by
“failing to adequately explain the chosen sentence.” Gall v.
United States, 128 S. Ct. 586, 597 (2007). Carter asked the
district court to impose a sentence below the range suggested
by the sentencing guidelines. In his request, he raised “spe-
cific, nonfrivolous argument[s] tethered to [ ] relevant
§ 3553(a) factor[s].” Carty, 520 F.3d at 992. Yet, in imposing
sentence, the court gave no indication that it had heard Car-
ter’s arguments and imposed sentence with almost no expla-
nation. I believe that the district court erred in failing to
address Carter’s arguments, failing adequately to consider the
§ 3553(a) factors, and failing adequately to explain the sen-
tence that was imposed. I therefore respectfully dissent from
Part IV of the Discussion section of the majority opinion.
3850 UNITED STATES v. CARTER
The majority cites a lengthy passage from the sentencing
hearing to support its conclusion; however, this passage does
not reveal that the district court adequately addressed Carter’s
arguments and the § 3553 factors. It was apparent to govern-
ment counsel, Assistant U.S. Attorney Elizabeth R. Yang, that
the court’s explanation was insufficient, as indicated by the
fact that, even after the court gave the statement quoted by the
majority, Ms. Yang proceeded to ask the court a series of
questions designed to address the inadequacy of the court’s
statement:
Ms. Yang: And with regard to the court’s denial of
the downward departure request respecting criminal
history category, has the court recognized that it has
discretion to depart on this ground but chooses not
to exercise that discretion?
The Court: You mean the 20 days.
Ms. Yang: No, the criminal history category, the
over-representation.
The Court: What did you say?
Ms. Yang: Does the court recognize that it has dis-
cretion to depart based on over-representation of
criminal history but chooses not to exercise it’s [sic]
discretion?
The Court: Yes.
Ms. Yang: And finally with regard to the sentence
the court has imposed including the guideline calcu-
lations, the advisory guideline calculations and the
mandatory minimum, has the court found that this
sentence is reasonable taking into account all the fac-
tors and the purposes set forth in 18 U.S.C. 3553a?
UNITED STATES v. CARTER 3851
The Court: Yes. I found my sentence to be reason-
able.
Tr. of 4/11/05 Sentencing Hr’g at 26-27.
Carter asked the court to apply the statutory mandatory
minimum sentence of 360 months — a sentence already many
times longer than those of his coconspirators.1 He argued that
his criminal history category was overrepresented. He
received one criminal history point for a conviction for pos-
session of narcotics and one criminal history point for a con-
viction for giving a false identity to a police officer when he
was stopped for driving without his lights on. He received an
additional two points because he was on diversion for the nar-
cotics offense and on probation for the false identity offense
when he committed the instant offense. Carter asked the court
to exercise its discretion and impose a below-guidelines sen-
tence, taking into consideration his difficult childhood, his
family situation and his young children, and the rehabilitative
effect of what would be, under the statutory minimum, thirty
years in prison.
Rather than addressing any of Carter’s arguments, the court
applied the guidelines sentence, stating that the guidelines had
“adequately taken into consideration [Carter’s] actions and
criminal history,” and that the “lengthy sentence is suffi-
1
The bulk of Carter’s sentence was due to the statutory mandatory mini-
mum twenty-five year sentence for a subsequent conviction under 18
U.S.C. § 924(c)(1)(C). This court has in the past urged Congress to recon-
sider the “harsh scheme of mandatory minimum sentences” imposed by
§ 924. United States v. Harris, 154 F.3d 1082, 1085 (9th Cir. 1998); see
also United States v. Hungerford, 465 F.3d 1113, 1118-22 (9th Cir. 2006)
(Reinhardt, J., concurring in the judgment) (describing as “irrational, inhu-
mane, and absurd” a 159-year sentence imposed on a mentally ill woman
who had nothing to do with the firearm used in the robberies), cert.
denied, 127 S. Ct. 2249 (2007). Harris and Hungerford were decided
under the mandatory sentencing regime; thus, the criticism was aimed at
Congress’ decision to remove all discretion from the sentencing judge.
3852 UNITED STATES v. CARTER
ciently punitive and hopefully will deter against any further
criminal activity.” This rote recitation of a few of the § 3553
factors does not begin to constitute “an individualized assess-
ment based on the facts presented.” Gall, 128 S. Ct. at 597.
Moreover, the court’s simple affirmative responses to the
government’s pointed questions regarding Carter’s arguments
do not provide a record that “makes clear that the sentencing
judge listened to each argument.” Rita v. United States, 127
S. Ct. 2456, 2469 (2007).
The Supreme Court has instructed that the district court
“may not presume that the Guidelines range is reasonable.”
Gall, 128 S. Ct. at 596-97; see also Rita, 127 S. Ct. at 2465(emphasizing that, in determining the merits of the arguments
by prosecution and defense that the guidelines sentence
should not apply, “the sentencing court does not enjoy the
benefit of a legal presumption that the Guidelines sentence
should apply”). Here, however, the district court presumed the
guideline range was reasonable and failed to make any indi-
vidualized assessment.
“The sentencing judge should set forth enough to satisfy
the appellate court that he has considered the parties’ argu-
ments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Rita, 127 S. Ct. at 2468. Yet, the
district court did not give any reason for rejecting Carter’s
arguments regarding his sentence. Unlike cases in which we
have found that the district court adequately considered the
defendant’s specific “history and characteristics,” the court
did not “consider how the sentencing factors apply to [Carter]
and determine whether an individualized sentence [was] war-
ranted.” United States v. Plouffe, 445 F.3d 1126, 1131 (9th
Cir. 2006); see, e.g., United States v. Stoterau, 524 F.3d 988,
999-1000 (9th Cir. 2008) (finding that the district court ade-
quately “considered the evidence and arguments of the defen-
dant” where the district court referred to numerous
subsections of § 3553(a), and, “at various points in the sen-
tencing hearing, the district court explicitly noted that it had
UNITED STATES v. CARTER 3853
considered [the defendant’s] arguments”), cert. denied, 129
S. Ct. 957 (2009).
I echo the concern that such deferential review has made
appellate review of sentencing “an empty formality.” Gall,
128 S. Ct. at 607 (Alito, J., dissenting); see also United States
v. Autery, 2009 WL 349801, at *12 (9th Cir. 2009) (Tashima,
J., dissenting); United States v. Ruff, 535 F.3d 999, 1005 (9th
Cir. 2008) (Gould, J., dissenting) (in the context of reviewing
a sentence for substantive reasonableness, stating that the
abuse of discretion standard for reviewing sentencing deci-
sions “is not a rubber stamp of all sentencing decision made
by a district judge”).2 Carter’s prior offenses were minor and
nonviolent, and his criminal history category was increased
significantly based solely on his being on probation for the
misdemeanor of giving false information when stopped for
driving without his lights on.3 The 471-month sentence Carter
received was much longer than the sentences received by the
other participants in the robberies.4 The district court’s com-
2
Gall, Autery, and Ruff involved review of the reasonableness of a sen-
tence, rather than the consideration of whether the district court committed
procedural error.
3
The harsh sentence and the district court’s failure to acknowledge Car-
ter’s arguments stand in stark contrast to Ruff, in which a white collar
criminal who embezzled more than half a million dollars from his
employer received a sentence of one day of imprisonment, a sentence well
below the guideline recommendation. The district court in Ruff relied,
among other factors, on the defendant’s age and “his mental, financial and
gambling problems.” Ruff, 535 F.3d at 1006 (Gould, J., dissenting). Carter
surely raised personal problems at least as compelling as the defendant in
Ruff. I agree with Judge Gould that we “ought to consider why it is that
such light sentences are all too frequently handed out by district courts for
white collar crimes.” Id.4
One of the § 3553(a) factors is “the need to avoid unwarranted sen-
tence disparities. . . .” 18 U.S.C. § 3553(a)(6). The evidence indicates that
O’Neal and Warren planned and recruited the participants for both rob-
beries; O’Neal cooperated, and Warren pled, and they received sentences
of 105 months and 41 months, respectively. The record also indicates that
Edward Hector participated in both robberies, but, for unknown reasons,
3854 UNITED STATES v. CARTER
plete failure to acknowledge Carter’s arguments, and, based
on its exchange with Ms. Yang, its failure even to have heard
the arguments, do not “communicate[ ] that the parties’ argu-
ments have been heard, and that a reasoned decision has been
made.” Carty, 520 F.3d at 992. Section 3553 requires the
court to state “the reasons for its imposition of the particular
sentence,” 18 U.S.C. § 3553(c), because “[c]onfidence in a
judge’s use of reason underlies the public’s trust in the judi-
cial institution,” Rita, 127 S. Ct. at 2468. In my mind, the
majority’s reliance on the district court’s cursory explanation
for the harsh sentence imposed does not constitute “meaning-
ful appellate review.” Carty, 520 F.3d at 992.
It is true that “when a defendant’s arguments are straight-
forward and uncomplicated, the district court does not abuse
its discretion when it listens to the defendant’s arguments and
then ‘simply [finds those] circumstances insufficient to war-
rant a sentence lower than the Guidelines range.’ ” Stoterau,
524 F.3d at 999 (quoting Carty, 520 F.3d at 995) (alteration
in original). However, the arguments regarding Carter’s crim-
inal history are not straightforward and uncomplicated. More-
over, in Rita, from which this principle is taken, the district
court asked numerous questions about all of the sentencing
issues raised by the parties before giving its “brief but legally
sufficient” statement of reasons for the sentence it imposed.
Rita, 127 S. Ct. at 2469; see Joint Appendix, Vol. I, at 48-91,
Rita v. United States, 127 S. Ct. 2456 (2007) (No. 06-5754)
(transcript of sentencing hearing); cf. United States v. Perez-
Perez, 512 F.3d 514, 516-17 (9th Cir. 2008) (finding the sen-
tence reasonable where the district court expressly cited the
defendant’s extensive criminal history and the need for deter-
was charged in only one; he went to trial and received a sentence of 240
months. The other participants received sentences ranging from 125
months to 137 months. The only participant who received a sentence
remotely close to Carter’s was Koran Allen, who received a 319-month
sentence, but Allen was a career offender with a long criminal history,
including several violent offenses.
UNITED STATES v. CARTER 3855
rence and “actively questioned and engaged the defense” dur-
ing sentencing). Here, by contrast, the court did not
acknowledge or address the arguments raised by Carter at all.
The nature of Carter’s prior offenses, the length of his sen-
tence, and the district court’s failure to address any of the spe-
cific arguments raised by Carter, coupled with the minimal
consideration of the § 3553(a) factors as applied to Carter,
lead me to conclude that not only did the district court commit
procedural error by failing adequately to consider the
§ 3553(a) factors, failing to make an individualized determi-
nation, and failing to consider the arguments raised by Carter,
but that the sentence is not reasonable. For these reasons, I
respectfully dissent from Part IV and the majority’s conclu-
sion that Carter’s sentence was reasonable.