United States v. Theresa Thornhill

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 13-2876, 13-2877, 13-2878
_____________
UNITED STATES OF AMERICA
v.
THERESA M. THORNHILL,
Appellant
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court Nos. 2-02-cr-00084-001;
2-07-cr-00388-001; 2-09-cr-00154-001
District Judge: The Honorable Terrence F. McVerry
Argued March 6, 2014
Before: RENDELL, SMITH, and HARDIMAN,
Circuit Judges
(Filed: July 8, 2014)
1
Rebecca R. Haywood
Michael L. Ivory [ARGUED]
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
Elisa A. Long [ARGUED]
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant
_____________________
OPINION
_____________________
SMITH, Circuit Judge.
In 1984, Congress enacted the Sentencing Reform
Act, a measure which profoundly “revise[d] the old
sentencing process.” Mistretta v. United States, 488 U.S.
361, 367 (1989). One of the reforms effected by the Act
was the elimination of special parole and the
establishment of a “new system of supervised release.”
Gozlon-Peretz v. United States, 498 U.S. 395, 397
2
(1991). The “new system” was codified in 18 U.S.C.
§ 3583, and included a provision at subsection (g) which
mandates the revocation of supervised release and the
imposition of a term of imprisonment under certain
enumerated circumstances. 18 U.S.C. § 3583(g).1
The question we consider is: once § 3583(g)’s
mandatory revocation provision is triggered, what guides
a district court’s exercise of discretion in determining the
length of the defendant’s term of imprisonment? We
conclude that this exercise of discretion is guided by the
sentencing factors set forth in 18 U.S.C. § 3553(a).
I.
In 2002, Theresa Thornhill pled guilty to a single
count of bank fraud in violation of 18 U.S.C. § 1344(a) in
the United States District Court for the Western District
of Pennsylvania. On May 23, 2003, the District Court
sentenced Thornhill to, inter alia, 21 months of
imprisonment and a five-year term of supervised release.
1
Section 3583(g) provides, in relevant part, that if the
defendant engages in certain conduct involving
controlled substances or firearms, that “the court shall
revoke the term of supervised release and require the
defendant to serve a term of imprisonment not to exceed
the maximum term of imprisonment authorized under
subsection (e)(3).” 18 U.S.C. § 3583(g).
3
She was also directed to make restitution in the amount
of $25,521.12 (2003 Conviction).
Thornhill’s five-year term of supervised release for
the 2003 Conviction commenced on December 30, 2004.
In a Petition on Supervised Release dated May 30, 2007
(First Petition), Thornhill’s probation officer advised the
District Court that: Thornhill had submitted six urine
samples that tested positive for marijuana; she had failed
to attend her outpatient treatment for substance abuse;
she had neither reported to her probation officer nor filed
the requisite reports; and she had not made any payments
toward restitution.
The District Court issued a bench warrant, and
Thornhill was arrested in July 2007. Thereafter, the
probation officer filed a Motion to Supplement the
Petition on Supervised Release (Second Petition),
alleging additional violations of the conditions of her
supervised release. The Second Petition charged that
Thornhill had engaged in fraudulent conduct by opening
four bank accounts at four different branches of National
City Bank using four different Social Security numbers.
It alleged that she had deposited checks drawn on closed
accounts into these new accounts, and concluded that this
conduct amounted to bank fraud under 18 U.S.C.
§ 1344(1), fraudulent use of social security numbers
under 18 U.S.C. § 407(a)(7)(B), and aggravated identity
theft under 18 U.S.C. § 1028A(a)(1). Exhibits attached
4
to the Second Petition established that National City
Bank sustained a loss of $7,648.65.
On November 16, 2007, Thornhill waived her right
to an indictment and pled guilty to a one-count
information charging her with bank fraud in violation of
18 U.S.C. § 1344(1) (2007 Conviction). The information
was based on the criminal conduct described in the
Second Petition.
At her guilty plea, Thornhill’s defense counsel
advised the District Court that, according to the pretrial
services office, Thornhill was cooperating with the
conditions of her release. Specifically, counsel told the
court that she was reporting to her probation officer as
required and that her weekly drug screens tested
negative. In addition, defense counsel noted that the
supervising probation officer hoped that Thornhill could
move out of the residence of a third-party custodian, and
was agreeable to eliminating the electronic monitoring
that had been a condition of her pre-trial release. The
probation officer confirmed counsel’s representations.
The District Court agreed to the modifications.
On February 25, 2008, Thornhill’s probation
officer filed a Supplemental Petition on Supervised
Release (Third Petition). This new petition alleged that
Thornhill had again tested positive for marijuana on three
occasions in January and February of 2008, thereby
violating conditions of supervised release stemming from
5
her 2003 Conviction. The Third Petition also referenced
Thornhill’s guilty plea to the 2007 information, which
established the commission of a federal crime.
On March 28, 2008, the District Court conducted
both a sentencing hearing for the 2007 Conviction and a
hearing on the First, Second, and Third Petitions, which
alleged violations of the terms of her supervised release
on the 2003 Conviction. Defense counsel offered several
exhibits intended to provide insight into Thornhill’s
personal circumstances, including a fourteen page,
single-spaced report from clinical psychologist Jolie S.
Brams, Ph.D.
Dr. Brams’s report was thorough. She noted that,
contrary to an earlier presentence report, Thornhill had a
significant history of psychiatric issues as a child. This
history included hospitalizations, and noted “a complete
lack of parental concern or nurturing.” The report also
described a history of sexual abuse at the hands of a
family member which had resulted in her placement into
foster care. Thornhill’s marriage was similarly marked
by physical and mental abuse. Dr. Brams opined that
Thornhill had many of the signs and symptoms of post-
traumatic stress disorder and that her “mental health
difficulties impacted her ability to deal with her life in a
consistently efficacious manner, cloud[ed] her judgment,
and made her more vulnerable to [the] manipulations of
her husband.” Dr. Brams described at length the impact
of the domestic violence Thornhill experienced and
6
characterized her extended family situation as “toxic.”
The report highlighted the limited resources available to
help Thornhill.
According to Dr. Brams, Thornhill had some
insight into her predicament, and she opined that there
could be a “good prognostic outcome if the correct
resources are put in place.” The report concluded by
stating:
Appropriate psychiatric treatment is also
crucial, and she has demonstrated a
willingness to comply and recognizes her
need for these services. She clearly wants to
have a “normal” life, but has had little
opportunity to learn how to create one.
However, underneath a history of
dysfunction appears to be a young woman
who has the potential to change.
Defense counsel also provided the District Court
with a six page, single-spaced supplemental report from
Dr. Brams. The supplemental report discussed
Thornhill’s progress over the previous six months. Dr.
Brams opined that
Thornhill’s life is as stable as it likely has
ever been, and while she recognizes the
support of her probation officer, attorney,
and counselor, in reality it is Ms. Thornhill
7
who has generally dealt in an appropriate
manner with her life, as an adult, parent,
employee, and citizen. It is important for
the Court to note that she has done so in the
face of continuing stressors, and immense
family dysfunction with purposeful threats
to her emotional and physical safety by
various family members.
The supplemental report advised that Thornhill was
employed part time as a licensed nursing assistant.
According to Dr. Brams, Thornhill was receiving
counseling services and complying with her medication
regime.
Thornhill’s family continued to present obstacles
for her, especially those created by her abusive husband.
Dr. Brams noted that Thornhill was concerned about who
would care for her children if she were to be incarcerated.
And Thornhill expressed a belief that the progress she
had made would be negated if she were to be
incarcerated. Dr. Brams opined that Thornhill “has done
well during the last few months,” making “solid and
positive recovery from many traumatic events.”
Beyond her written reports, Dr. Brams testified at
the hearing. She acknowledged that Thornhill had used
marijuana, but noted that it was on a therapeutic basis
when she had run out of her medication and when she
“was under a great deal of stress.” According to Dr.
8
Brams, Thornhill did not use marijuana “for recreational
purposes.” Thornhill’s probation officer also testified
about her progress following the 2007 Conviction.
After hearing the testimony, the District Court
imposed sentence. Looking at a guideline range for bank
fraud of eight to fourteen months of imprisonment, the
Court granted a substantial downward variance based on
Thornhill’s diminished mental capacity and her
responsibility for raising her two sons. He sentenced her
to one day of imprisonment, imposed a five-year term of
supervised release, and directed that she pay restitution to
National City Bank.
The hearing then turned to the violations alleged in
the First, Second, and Third Petitions. Thornhill
admitted the allegations in the petitions, and the
government encouraged the judge to impose a within-
guideline sentence of twelve to eighteen months of
imprisonment. Nevertheless, after revoking her
supervised release on the 2003 Conviction, the District
Court sentenced her to one day of imprisonment, to be
served concurrently with the sentence imposed for the
2007 Conviction. Importantly, the Court imposed
another three-year term of supervised release for the
2003 Conviction.
The terms of the supervised release imposed for
the 2007 Conviction included a nine-month period of
home detention during which Thornhill was required to
9
wear an electronic monitoring device. In September
2008, almost six months after being sentenced, Thornhill
was the subject of yet another Petition on Supervised
Release (Fourth Petition), this one alleging that she had
tampered with her electronic monitoring transmitter.2 In
addition, the Fourth Petition alleged that Thornhill had
again tested positive several times for marijuana.
A Supplemental Petition on Supervised Release
(Fifth Petition) followed just a month later. This Petition
alleged that Thornhill had failed: to attend scheduled
mental health appointments; to attend scheduled visits
with her probation officer; to file the reports that were
required by the terms of her supervised release; and to
make any payments toward restitution.
On October 28, 2008, yet another revocation
hearing was conducted before the same District Judge.
Thornhill admitted to using marijuana and that she had
not been wearing the monitoring device as required. She
also admitted to the violations set forth in the Fifth
Petition. Once again, the judge found that Thornhill had
violated the conditions of supervised release and revoked
her supervised release on both the 2003 and the 2007
Convictions. He imposed a within-guideline term of
imprisonment of nine months on each conviction, to be
2
According to the Fourth Petition, police officers were at
her apartment and found her ten-year-old son wearing the
electronic monitoring transmitter. A246.
10
served concurrently, followed by a 24-month term of
supervised release.
The allegations in the Fourth and Fifth Petitions
did not include averments that Thornhill had engaged in
additional criminal conduct. But an indictment returned
by a grand jury in May 2009, alleged that from “May
2008 to in or around July 2008,” Thornhill again
“knowingly execute[d] and attempt[ed] to execute a
scheme and artifice to defraud” another bank in violation
of 18 U.S.C. § 1344. On October 9, 2009 the same
District Judge who had sentenced Thornhill on her 2003
and 2007 Convictions for bank fraud, accepted
Thornhill’s guilty plea to the offense of bank fraud (2009
Conviction). In February of 2010, he sentenced
Thornhill to a term of imprisonment of 24 months,
followed by a four-year term of supervised release and
payment of restitution.
Thornhill’s term of supervised release on the 2003,
2007, and 2009 Convictions commenced on July 27,
2011.3 In a Show Cause Petition (Sixth Petition) dated
April 26, 2013, Thornhill’s probation officer alleged that
Thornhill had again violated the terms of her supervised
3
It appears that Thornhill was sentenced to 24 months of
imprisonment in February of 2010 and that only
seventeen months passed when her supervised release
commenced on July 11, 2011. The record, however, does
not explain why she did not serve the entire 24 months.
11
release for each conviction. The Sixth Petition alleged
that: she had committed several violations of
Pennsylvania’s Vehicle Code and Criminal Code; tested
positive for marijuana on seven occasions;4 failed to
attend mental health treatment appointments; and neither
reported to the probation office for drug testing as
required nor submitted the required monthly report. In
addition, the Sixth Petition averred that Thornhill had
made no restitution payments on the 2007 and 2009
Convictions and owed more than $25,000 on the 2003
Conviction.
On June 4, 2013, the same District Judge who had
sentenced Thornhill on her 2003, 2007, and 2009
Convictions conducted a third revocation hearing. The
Court recounted in detail Thornhill’s criminal history and
set forth the alleged violations of the terms of her
supervised release on the record. Defense counsel noted
that Thornhill admitted the allegations in the Sixth
Petition except for the state law violations and the
averment that she had failed to report to the probation
office. The probation officer noted Thornhill’s
psychiatric disorders and that she had been traumatized
4
Section 3583(g) mandates revocation “[i]f the defendant
. . . as a part of drug testing, tests positive for illegal
controlled substances more than 3 times over the course
of 1 year.” 18 U.S.C. § 3583(g)(4). Thornhill’s positive
tests triggered § 3583(g)’s applicability.
12
because she had witnessed her brother’s murder. In the
wake of this murder, the probation officer noted,
Thornhill also had to cope with the murder of one of her
sons and the fact that another son sustained serious
injuries in a motor vehicle accident. The probation
officer acknowledged that Thornhill’s failure to comply
with the reporting requirement occurred during this
turbulent time.
The Court then heard argument, during which
defense counsel noted that Thornhill’s violations were
Grade C violations and urged the Court not to revoke her
supervised release. He emphasized the tragic nature of
Thornhill’s case, acknowledging that the “Court is aware
of her history.” Counsel went on to recount Thornhill’s
psychiatric disorders, her abusive childhood and
marriage, and the series of tragic events involving the
murders of her brother and her son, as well as the car
accident involving her other son. Counsel conceded that
Thornhill had tested positive for marijuana, but explained
that she was self-medicating in light of her
circumstances. Counsel urged that, instead of revoking
her supervised release, the Court should provide her with
“structure.”
The Court responded to counsel by stating:
“That’s what we’ve been trying to give her . . . . She’s
been here, and been here, and been here. That’s what the
whole plan has been. [The probation officer] has worked
hard to try to give her a structure.”
13
The judge asked the probation officer whether
supervised release should be revoked. The probation
officer replied that she had tried to work with Thornhill
by referring her to different programs, but that Thornhill
had failed both to follow through and to comply with
directives from the Court. The probation officer
expressed her belief that Thornhill “needs the structured
environment, such as prison.” The government agreed,
once again, urging the Court to impose a substantial
sentence. The Assistant U.S. Attorney recommended a
three-year period of imprisonment, consisting of a one-
year term of imprisonment on each conviction.
The Court concluded that Thornhill had violated
the conditions of her supervised release. Thornhill then
addressed the Court. She referred to the unexpected
trauma in her life and stated:
I’m not asking you for anything, but if you
want to put me in jail, that’s fine. The only
thing I’m asking is, that I’ve always
reported, I’ve never not showed up for court.
I’ve never showed you any disrespect to not
report. I’m just asking – I wasn’t able to be
there when my brother’s murderers were
convicted. I’m just asking, can I be there
when the person who shot my child is tried.
That’s all I’m asking. If you want to sent
me away, that’s fine, Your Honor. But I did
not come out of prison to disrespect you.
14
In response to Thornhill’s remarks, the District
Judge stated the following:
Whatever you’ve done or not done, Miss
Thornhill, I personally don’t feel as though
you’ve disrespected me. The law is the law,
and you’ve been here time and again and
been asked to comply with the law, and do
what the Probation Office has been
attempting to help you do. And although
you have personal issues, and I recognize
those, to be honest, you’ve been a very, very
difficult person to deal with whenever
you’re not in a controlled environment. And
I don’t know whether you’re difficult to deal
with when you’re in a controlled
environment, but I’ve had nine years of
experience with you and it’s been time, after
time, after time.
The District Court then found that Thornhill had
committed Grade C violations, including the positive
drug tests for marijuana and the failure to participate in
the various programs designed to address her mental
health disorders and her substance abuse. The Court
explained that the positive drug tests triggered the
mandatory revocation provision in § 3583(g), which
required a term of imprisonment. The Court
acknowledged an exception to § 3583(g)’s mandatory
15
revocation.5 He concluded, however, that this exception
was not warranted in Thornhill’s case in light of the
unsuccessful efforts that had already been made to
address her substance abuse problems. The judge
revoked her supervised release on each conviction,
noting that she was subject to imprisonment for not more
than three years on each conviction.6 The Court imposed
a term of imprisonment of twelve months for each
conviction to be served consecutively, with “no
supervised release to follow, as you have proven yourself
to be unmanageable in a free society environment.” The
District Court directed that Thornhill begin her 36-month
sentence immediately.7
5
Section 3583(d) provides that the “Court shall consider
whether the availability of appropriate substance abuse
treatment programs, or an individual’s current or past
participation in such programs, warrants an exception . . .
from the rule of section 3583(g) when considering any
action against a defendant who fails a drug test.” 18
U.S.C. § 3583(d).
6
In reviewing the advisory guideline for each conviction,
the District Court pointed out that the advisory guideline
range for the 2003 Conviction was three to nine months,
five to eleven months for the 2007 Conviction, and six to
twelve months for the 2009 Conviction. A399.
7
Because he had been advised that the trial of her son’s
murderer was scheduled to commence in a week, the
16
Thornhill filed a timely notice of appeal,
challenging the revocation of supervised release in each
of the three criminal proceedings.8
II.
Thornhill contends that the sentences the District
Court imposed upon revocations were procedurally and
substantively unreasonable. In particular, Thornhill
asserts that the District Judge erred by failing to articulate
his reasons for rejecting the recommended guideline
range, and by failing to indicate if, or how, he considered
the sentencing factors enumerated in 18 U.S.C.
§ 3553(a). In addition, Thornhill submits that the District
Court failed to respond to her mitigation arguments.
According to Thornhill, these errors rendered the District
Court’s sentences substantively unreasonable.
The government contends that Thornhill’s
arguments lack merit, arguing that a district court “is not
required to consider the § 3553(a) factors when
revocation of supervised release is governed by
judge requested the cooperation of the United States
Marshal’s Service while Thornhill was in local custody
in the event she was subpoenaed to appear.
8
The District Court exercised jurisdiction under 18
U.S.C. §§ 3231 and 3583(g). We have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
17
§ 3583(g).” For that reason alone, the government
asserts that Thornhill’s claim of procedural error must
fail. Nonetheless, the government submits that the
District Court did consider some of the § 3553(a)
sentencing factors and that the Court’s revocation order
is neither procedurally nor substantively unreasonable.
III.9
A.
According to the government, this court has
determined that once § 3583(g) applies, the District Court
is not required to consider the § 3553(a) factors in
9
The question of whether the District Court is required to
consider the § 3553(a) factors in imposing a term of
imprisonment under § 3583(g) presents an issue of law
subject to plenary review. See United States v. Smith,
445 F.3d 713, 716 (3d Cir. 2006) (noting, in the context
of an appeal challenging a condition of supervised
release, that our review is plenary to the extent it
concerns a legal issue); see also United States v.
Poellnitz, 372 F.3d 562, 570 (3d Cir. 2004) (applying
plenary review to question of statutory interpretation
involving § 3583(i)). We review the procedural and
substantive reasonableness of a sentence imposed upon
revocation of supervised release for an abuse of
discretion. United States v. Bungar, 478 F.3d 540, 542
(3d Cir. 2007).
18
imposing a term of imprisonment. It relies on our
decision in United States v. Doe, 617 F.3d 766, 772 (3d
Cir. 2010). There, we noted the two types of revocation
proceedings: discretionary revocation under § 3583(e)(3)
and mandatory revocation under § 3583(g). Id. With
regard to the mandatory provision, we stated that
“[w]hile [mandatory revocation under] § 3583(g) does
not expressly require consideration of the § 3553(a)
factors, it does not prohibit the sentencing court from
doing so.” Id.
Ostensibly, this language lends some support for
the government’s contention that the District Court did
not err because it was not required to consider the
§ 3553(a) factors. Yet the Doe language is not
controlling. Because the Doe Court ultimately concluded
that the District Court had exercised its authority under
§ 3583(e)’s discretionary revocation provision, the
statement relied upon by the government is dictum.
Furthermore, the Court’s “observation” that § 3583(g)
does not explicitly refer to the § 3553(a) factors does not
amount to a holding that these factors have no role to
play in a mandatory revocation proceeding.10
Accordingly, we are left to decide whether the § 3553(a)
factors must be considered by a district judge in deciding
10
Indeed, the government tacitly acknowledges as much.
In its Rule 28(j) letter, the government characterized this
quotation from Doe merely as an “observation.”
19
the length of a term of imprisonment following
mandatory revocation under § 3583(g).
B.
In the absence of binding authority, we must
determine whether the statute provides specific guidance
to a district judge when exercising his/her discretion in
choosing an appropriate term of imprisonment following
mandatory revocation of supervised release. “Statutory
interpretation requires that we begin with a careful
reading of the text.” Zimmerman v. Norfolk S. Corp., 706
F.3d 170, 177 (3d Cir. 2013). See also Barnhart v.
Sigmon Coal Co., 534 U.S. 438, 450 (2002) (“As in all
statutory construction cases, we begin with the language
of the statute.”).
Our inquiry is not confined solely to the text of
§ 3583(g). Rather, “[i]n matters of statutory
interpretation, the ‘plain meaning’ of statutory language
is often illuminated by considering not only ‘the
particular statutory language’ at issue, but also the
structure of the section in which the key language is
found, [and] ‘the design of the statute as a whole and its
object.’” United States v. Tupone, 442 F.3d 145, 151 (3d
Cir. 2006) (quoting United States v. Schneider, 14 F.3d
876, 879 (3d Cir. 1994)). Our analysis, therefore, is
informed not only by the text and structure of § 3583 in
its entirety, but also the text and structure of the
Sentencing Reform Act, §§ 3551-3586, which
established the sentencing regime.
20
Section 3583 pertains to supervised release. 18
U.S.C. § 3583. This section establishes that supervised
release may be imposed initially as a component of a
sentence. Id. § 3583(a). In addition, once imposed,
supervised release may be terminated, extended, or
revoked. Id. § 3583(e)(1), (2), and (3). If supervised
release is revoked and a term of imprisonment is
imposed, that imprisonment may be followed by another
term of supervised release. Id. § 3583(h).
Revocation of supervised release takes two forms:
discretionary under § 3583(e) and mandatory under
§ 3583(g). Doe, 617 F.3d at 772. Section 3583(e)
establishes a three-step process for discretionary
revocation: (1) a finding by the court that the defendant
violated a condition of supervised release; (2) a decision
by the court to revoke the defendant’s term of supervised
release; and (3) following revocation, the imposition of a
penalty.11 Significantly, subsection (e) directs that the
11
18 U.S.C. § 3583(e)(3) (“The court may, after
considering [certain] factors set forth in § 3553(a) . . .
revoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of
supervised release authorized by statute for the offense
that resulted in such term of supervised release. . . if the
court . . . finds by a preponderance of the evidence that
the defendant violated a condition of supervised
release”).
21
court’s decision to revoke at step two must be made
“after considering” certain factors set forth in § 3553(a).
18 U.S.C. § 3583(e).
Section 3583(g) pertains to mandatory revocation.
The process set out in this subsection is similar to that of
§ 3583(e) but eliminates step (2) and makes no reference
to § 3553(a). Thus, this subsection entails only two
steps: (1) a finding by the court that one of the four
circumstances in § 3583(g)(1)–(4) occurred; and (2) if so,
revocation is automatic and the court must impose a
“term of imprisonment” as a penalty.
This two-step process makes clear why Congress
referred in § 3583(e) to the § 3553(a) sentencing factors,
and why it did not need to mention § 3553(a) in the
mandatory revocation provision in § 3583(g). Congress
explicitly tied consideration of the § 3553(a) factors in
§ 3583(e) to the exercise of discretion by a district court
in deciding whether to “(1) terminate a term of
supervised release[,] . . .(2) extend a term of supervised
release[,] . . . (3) revoke a term of supervised release[,] . .
. or (4) order the defendant to remain at his place of
residence.” 18 U.S.C. § 3583(e). The mandatory
revocation provision, however, affords the district court
no discretion in making a decision about revocation.
Once § 3583(g) is triggered, the revocation is automatic.
There was no need, therefore, for Congress to instruct
that the § 3553(a) factors should be considered prior to
22
making a decision about mandatory revocation under
§ 3583(g).
Moreover, there was no need to refer to § 3553(a)
in enacting this provision on mandatory revocation. The
text of § 3583(g) specifies that when any of the
enumerated circumstances exist, revocation is mandated
and a district court “shall . . . require the defendant to
serve a term of imprisonment.” The penalty dictated by
§ 3583(g)–“a term of imprisonment”–is not unique to
revocation of supervised release under § 3583(g). It is,
rather, a common component of most sentences that may
be imposed following a defendant’s conviction. See 18
U.S.C. § 3582 (governing the imposition or modification
of a term of imprisonment); United States v. Goodson,
544 F.3d 529, 537 (3d Cir. 2008) (listing the penalties
that may be a component of a sentence). Section § 3582
itself provides that a “court, in determining whether to
impose a term of imprisonment, and . . . in determining
the length of the term, shall consider the factors set forth
in section 3553(a) to the extent they are applicable[.]”
Id. § 3582(a) (emphasis added). Thus, the usage of the
statutory phrase “term of imprisonment” in § 3583(g)
incorporates both § 3582 and its directive to consider the
§ 3553(a) sentencing factors.
Section 3553(a)’s applicability to mandatory
revocation proceedings fits neatly within the sentencing
regime established by the Sentencing Reform Act.
Section 3553(a) provides that “in determining the
23
particular sentence to be imposed, [a court] shall
consider” seven enumerated factors. 18 U.S.C.
§ 3553(a)(1)–(7). Each of the statutory provisions
pertaining to the various components of a sentence also
directs that the § 3553(a) factors should be considered.
See 18 U.S.C. § 3562 (directing that the court, “in
determining whether to impose a term of probation, and .
. . the length . . . and conditions of probation, shall
consider the factors set forth in section 3553(a)); § 3572
(the court, “[i]n determining whether to impose a
fine . . . shall consider,” inter alia, the § 3553(a) factors);
§ 3583(c) (inclusion of supervised release as a part of a
sentence requires consideration of certain § 3553(a)
factors). Indeed, consideration of the § 3553(a) factors is
not limited to determining the type of penalty and the
attributes of that penalty. Section 3553(a) also applies
when a court decides whether multiple sentences are to
run concurrently or consecutively. 18 U.S.C. § 3584(b).
Nothing in the language of § 3553(a) limits its
application to a revocation proceeding under § 3583(g).
Nor does § 3582(a) include language concerning the
factors to be considered in determining the length of a
term of imprisonment that renders § 3553(a) inapplicable
to a mandatory revocation proceeding. And the
mandatory revocation provision itself does not prohibit
consideration of the § 3553(a) factors in setting the
length of the term of imprisonment required by the
statute. 18 U.S.C. § 3583(g); Doe, 617 F.3d at 772.
24
Accordingly, we hold that the text and structure of
§ 3583 and the Sentencing Reform Act require a district
court to consider the sentencing factors in § 3553(a) in
determining the duration of the term of imprisonment
imposed under the mandatory revocation provision in
§ 3583(g).12
Our holding should not be unexpected. It is
consistent with this court’s jurisprudence concluding that
the § 3553(a) factors are relevant in revocation
proceedings. In United States v. Clark, 726 F.3d 496 (3d
Cir. 2013), we considered whether a district court that
had revoked supervised release under § 3583(e)(3) had
erred by imposing both a “term of imprisonment” and a
term of supervised release without conducting separate
§ 3553(a) analyses for each penalty. We concluded that a
single § 3553(a) analysis was sufficient. In reaching this
conclusion, we recognized that, in a revocation
proceeding, § 3583(h) permits a district court to impose a
term of supervised release to follow any term of
imprisonment. Although § 3583(h) does not reference
the § 3553(a) sentencing factors, we held that the
sentencing factors are to be considered in imposing an
additional term of supervised release because they are
“listed in 18 U.S.C. § 3583(c), the provision governing
12
We limit our holding to the factors that must be
considered when imposing a term of imprisonment
following mandatory revocation under § 3583(g).
25
the imposition of the initial term of supervised release.”
Id. at 501. See also United States v. Santiago-Rivera, 594
F.3d 82, 84 (1st Cir. 2010) (reasoning that even though
§ 3583(h) “does not list the [§ 3553(a)] factors to be
considered in imposing a term of supervised release as a
part of a revocation sentence, it is a reasonable inference
that the factors are the same as those to be considered in
imposing an initial term of supervised release”); United
States v. Bungar, 478 F.3d 540, 542-43 (3d Cir. 2007)
(concluding, without objection, that our review of an
appeal of a mandatory revocation order is “for
reasonableness” and that “to be reasonable the record
must demonstrate the sentencing court gave meaningful
consideration to the § 3553(a) factors”).
Finally, our holding is consistent with the overall
sentencing scheme of the Sentencing Reform Act, which
repeatedly tethers the exercise of discretion by a
sentencing judge to the factors set out in § 3553(a). It
would be odd indeed for Congress, after specifying that
the § 3553(a) factors must inform a district court’s
exercise of discretion in imposing each component of a
sentence, see §§ 3553(a), 3562(a), 3572(a), 3582(a),
3583(c), to then give a district court carte blanche in
imposing a term of imprisonment following mandatory
revocation of supervised release under § 3583(g). See
Long v. Tommy Hilfiger U.S.A., Inc., 671 F.3d 371, 375
(3d Cir. 2012) (observing that the principles of statutory
26
interpretations instruct that courts should “avoid
constructions that produce odd or absurd results”).
IV.
A.
Having concluded that the District Court was
obliged to consider the § 3553(a) factors in deciding the
length of the term of imprisonment to impose following
revocation under § 3583(g), we turn to Thornhill’s
assertion that the District Court erred procedurally. In
United States v. Gunter, 462 F.3d 237, 247 (3d Cir.
2006), we established a “three-step sentencing process.”
After calculating the guideline sentence and formally
ruling on any motions of the parties, a sentencing court
must then exercise its discretion by considering the
relevant § 3553(a) factors in determining an appropriate
sentence. Thornhill contends that the District Court erred
at the third step of this process by failing to: (1) give
rational and meaningful consideration to the relevant §
3553(a) factors; (2) adequately explain the sentence,
including an explanation for any deviation from the
guidelines; and (3) respond to defense counsel’s
colorable arguments for mitigation. The burden is on
Thornhill to demonstrate that the District Court’s
sentence is unreasonable. United States v. Cooper, 437
F.3d 324, 332 (3d Cir. 2006), abrogated on other
grounds by Kimbrough v. United States, 552 U.S. 85(2007).
27
We review for abuse of discretion. United States
v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). In
Tomko, we emphasized that “it is essential that district
courts make an ‘individualized assessment based on the
facts presented.’” Id. (quoting Gall v. United States, 552
U.S. 38, 50 (2007)). We instructed that “it is equally
important that district courts provide courts of appeals
with an explanation ‘sufficient for us to see that the
particular circumstances of the case have been given
meaningful consideration within the parameters of
§ 3553(a).’” Id. (quoting United States v. Levinson, 543
F.3d 190, 196 (3d Cir. 2008)).
“Meaningful consideration” of the § 3553(a)
factors is also required in revocation proceedings. In
Bungar, we declared that in order for the penalty
imposed upon revocation of supervised release “to be
reasonable the record must demonstrate that the
sentencing court gave ‘meaningful consideration’” to the
§ 3553(a) factors. 478 F.3d at 543. This does not mean
that the sentencing court is required to “‘discuss and
make findings as to each of the § 3553(a) factors if the
record makes clear the court took the factors into account
in sentencing.’” Id. (quoting Cooper, 437 F.3d at 329).
The Supreme Court has instructed that the
“sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his
own legal decisionmaking authority.” Rita v. United
28
States, 551 U.S. 338, 356 (2007). And it is, of course,
the sentencing judge who “has access to, and greater
familiarity with, the individual case and the individual
defendant before him than the . . . appeals court.” Id. at
357-58. “Because of the ‘fact-bound nature of each
sentencing decision,’ there is no ‘uniform threshold’ for
determining whether a court has supplied a sufficient
explanation for its sentence.” United States v. Merced,
603 F.3d 203, 215 (3d Cir. 2010) (quoting Tomko, 562
F.3d at 567). In some cases a brief statement will suffice,
while in others a longer explanation may be necessary.
Id. See also Rita, 551 U.S. at 358 (concluding that
sentencing court’s statement of reasons was “brief”, but
“legally sufficient”). What a court may not do, however,
is ignore a colorable argument raised by a party if it
concerns the applicability of one the § 3553(a) factors.
Id.
When a district judge departs from the guideline
range, he must “explain his conclusion that an unusually
lenient or an unusually harsh sentence is appropriate in a
particular case with sufficient justifications.” Gall, 552
U.S. at 46. Yet we are mindful that “‘extraordinary’
circumstances” are not required “to justify a sentence
outside the Guidelines range.” Id. at 47. We will not
regard a sentence as unreasonable simply because we, as
an appellate panel, might conclude that a different
sentence would have been appropriate. Id. at 51. Rather,
we must take into account the “extent of the deviation,”
29
and “give due deference to the district court’s decision
that the § 3553(a) factors, on a whole, justify the extent
of the variance.” Id.
B.
The parties’ arguments during the revocation
proceeding are clear from the record – just as they no
doubt were to the District Judge. The defense urged him,
despite § 3583(g)’s applicability, not to revoke
Thornhill’s supervised release and not to impose a term
of imprisonment. The government argued that the Court
could not expect any change from Thornhill and it asked
the Court to impose a three year term of imprisonment
consisting of a one year term on each conviction, to run
consecutively. In other words, the parties were at polar
extremes: the defense urged the court to ignore the
mandates of § 3583(g) while the government advocated a
sentence of three years.
The record confirms that the able District Judge
listened to and understood these arguments. Thornhill’s
argument was contrary to the dictates of § 3583(g), and
the District Court recognized this. He explained that
§ 3583(g) required revocation because Thornhill had
tested positive for marijuana on more than three
occasions in one year. Although the defense did not
explicitly advance the applicability of the exception in
§ 3583(d) that permits relaxing the mandate of
imprisonment under § 3583(g), the Court on its own
30
addressed the exception. That exception was not
justified, the Court explained, based on Thornhill’s
failure to attend her current substance abuse and mental
health programs, as well as her inability to remain drug
free. In short, imprisonment was a certainty because of
§ 3583(g)’s applicability.
Thornhill argued for mitigation. Her problems,
she claimed, were attributable to her having witnessed
her brother’s murder, and dealing with the emotional
trauma resulting from both the murder of one of her sons
and the serious injuries of another. These circumstances
were fully considered by the District Court. The judge
listened attentively to Thornhill’s allocution. Thornhill
explained that she “did not come out of prison to
disrespect” the Court, but “[t]he unexpected trauma . . .
was something that happened in my life.” The District
Judge directly responded to Thornhill, telling her that he
“personally” did not “feel as though you’ve disrespected
me.” He then acknowledged the “personal issues”
Thornhill had described and explained to her that the
“law is the law.” In addition, at the conclusion of the
proceeding the Court requested the United States
Marshal’s Office to keep Thornhill in custody locally in
the event that she were subpoenaed to appear in the trial
of her son’s murderer. Contrary to Thornhill’s argument,
we conclude that the District Court fully considered and
responded to defense counsel’s colorable arguments for
mitigation.
31
The record demonstrates that the District Court
also meaningfully considered the relevant § 3553(a)
factors. Consistent with § 3553(a)(1), the Court fully
considered the nature and circumstances of the
violations, together with Thornhill’s history and
characteristics. At the beginning of the hearing, the
Court reviewed its almost-ten-year involvement with
Thornhill’s criminal cases since 2003. He noted her
three convictions for bank fraud and the previous
revocation proceedings. He pointed out the substantial
variance he had granted on the 2007 Conviction and the
first revocation proceeding, resulting in a sentence to one
day of imprisonment and an additional period of
supervised release. As noted above, the Court knew of
the personal difficulties Thornhill faced while on
supervised release. After hearing arguments from the
parties, the Court stated that it was “aware of”
Thornhill’s history and had “considered the extensive
files in these cases, the presentence reports and addenda
regarding the initial sentencings, and the Court’s
previous revocation . . . as well as [her] responses to the
allegations of the petition and the government’s
evidence.” The Court then rendered its findings
concerning the violations set forth in the Sixth Petition.
Our review of the record compels our conclusion that the
Court’s consideration of § 3553(a)(1) was more than
adequate. To conclude otherwise would be to ignore the
District Judge’s statement that “I’ve had nine years of
32
experience with you, and it’s been time, after time, after
time.”
Section § 3553(a)(2) directs a sentencing court to
consider the need for the sentence “to reflect the
seriousness of the offense, to promote respect for the
law,” “to provide just punishment,” to deter further
criminal conduct, “to protect the public” and to provide
correctional treatment in the most effective manner. 18
U.S.C. § 3553(a)(2)(A), (B), (C), and (D). Thornhill’s
recidivism, and the applicability of § 3583(g) requiring
the imposition of a term of imprisonment, brought these
§ 3553 considerations to the forefront of this revocation
hearing. We are well-satisfied that the Court took these
factors into account.
The Court’s dialogue with defense counsel is
telling. Defense counsel argued that the Court did not
have to find a violation and that Thornhill just “need[ed]
structure.” The Court replied: “That’s what we’ve been
trying to give her . . . She’s been here, and been here,
and been here. . . . So how else are we going to
accomplish that, without forcing her into a situation.”
This exchange clearly reveals the Court’s conclusion that
mere supervision had been ineffective in curbing
Thornhill’s substance abuse, deterring her criminal
conduct, or compelling her compliance with a regimen of
mental health treatment. In short, incapacitation and
deterrence had become necessary.
33
The District Court then asked the probation officer
for her view. She expressed her belief that Thornhill
“would not be compliant” with any program offered
outside a “lock-down facility.” She noted that, despite
her attempts to work with Thornhill, “[e]very step of the
way . . . she fail[ed] to comply with any directive.” The
probation officer agreed that Thornhill “needs the
structured environment . . . [of] prison.” Thereafter, the
Court again signaled the need for incapacitation, stating
that Thornhill was unmanageable when she was not in a
controlled environment and that she was “unmanageable
in a free society environment.”
As required by § 3553(a)(3) and (4), the District
Judge addressed the kinds of sentences available and the
applicable ranges of sentence for the violations with
respect to each of the convictions.13 He also addressed
13
Section 3553(a)(5) was not applicable to this
revocation proceeding. Section § 3553(a)(6) was not
relevant because there was no need to avoid unwarranted
sentence disparities in this revocation proceeding.
Section 3553(a)(7) requires consideration of the “need to
provide restitution to any victims of the offense.”
Because Thornhill’s failure to pay restitution was a
violation alleged in the Sixth Petition, this sentencing
factor was manifestly relevant. The Court appropriately
addressed this factor, making a finding that Thornhill had
not paid any restitution since June 13, 2011. Thornhill’s
34
the grade of the various violations, pointed out that the
maximum term of imprisonment on each conviction was
36 months, and noted the increasing guideline range for
each conviction in light of the expanded criminal history
category on the latter two convictions. And he noted the
advisory nature of the sentencing ranges. This discussion
was sufficient to demonstrate consideration of
§ 3553(a)(3) and (4).14 We therefore reject Thornhill’s
contention that the District Court failed to adequately
consider the § 3553(a) factors.
dire financial condition, however, obviated the need to
further address this factor.
14
Section 3553(a)(4)(B) directs a sentencing court to
consider the applicable policy statements. The
commentary to United States Sentencing Guideline
(U.S.S.G.) § 7B1.4 provides that “[w]here the original
sentence was the result of a downward departure . . . that
resulted in a sentence below the guideline range
applicable to the defendant’s underlying conduct, an
upward departure may be warranted.” U.S.S.G. § 7B1.4,
applic. note 4 (2012). Although the District Court did
not specifically refer to this policy statement, it is
nonetheless informative because of the substantial
downward variance Thornhill received on the 2007
Conviction. This variance was an aspect of Thornhill’s
history, and the Court made specific reference to it.
35
Thornhill maintains that the Court failed to
adequately explain the sentence that it ultimately decided
upon. We acknowledge that the sentencing judge “might
have said more.” Rita, 551 U.S. at 359. Rita instructs,
however, that “context and record” are important in
determining whether the “sentencing judge considered
the evidence and arguments.” Id. We conclude that the
record and context make clear that the District Court
fully considered all of the evidence and the arguments of
the parties. For that reason, we are hard-pressed to find
that the District Court’s order was procedurally
unreasonable or that it constituted an abuse of discretion.
At the time of this revocation proceeding, the judge had
nearly a decade of experience with Thornhill. He had
demonstrated leniency in his efforts to help her. After
advising the parties that he was fully aware of Thornhill’s
history and her characteristics and that he had reviewed
her extensive files, the District Judge emphasized the
need for structure in the sentence he must impose.
Thornhill’s violations were not a breach of trust on a
single conviction. The Court was fully aware that it was
imposing three separate penalties on three separate
convictions. His words adequately conveyed that a
lengthy term of imprisonment was called for under §
3583(g) because his more lenient exercises of discretion
had neither deterred Thornhill from criminal conduct nor
adequately conveyed to her the serious nature of her
circumstances.
36
In sum, we conclude that the District Court’s order
revoking Thornhill’s terms of supervised release and
imposing three separate penalties was not procedurally
unreasonable.
C.
Thornhill also challenges the substantive
reasonableness of her sentence. In her view, the District
Court’s procedural errors rendered her sentence
substantively unreasonable. Because we have concluded
that the District Court did not err procedurally, we
conclude that there is no merit to her substantive
challenge. See Tomko, 562 F.3d at 568 (instructing that
“if the district court’s sentence is procedurally sound, we
will affirm it unless no reasonable sentencing court
would have imposed the same sentence on the particular
defendant for the reasons the district court provided”).
IV.
In sum, we are mindful of the Supreme Court’s
observation in Rita that “[t]he 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.” 551 U.S. at 357-58.
That is especially so in this case, where the District Court
had followed closely over time Thornhill’s repeated
violations of her supervised release. Given the District
Judge’s experience with Thornhill and what we consider
37
to have been his measured treatment of her violations, we
conclude that the sentences should not be disturbed.
We will affirm.
38
UNITED STATES v. THORNHILL
Nos. 13-2876; 13-2877; 13-2878
RENDELL, Circuit Judge, Concurring in part and Dissenting
in part:
I agree with my colleagues that the District Court was
required to consider the factors set forth in 18 U.S.C. §
3553(a) in sentencing Ms. Thornhill, and I readily join their
eloquent and well-reasoned opinion on that issue.
I part ways with the majority’s disposition, however,
because I would remand so that the District Court can
meaningfully consider those sentencing factors in connection
with the mandatory imprisonment of Ms. Thornhill upon
revocation of her supervised release. The length of her term
of imprisonment is squarely at issue, and the § 3553(a) factors
should be weighed. This is especially true because the
District Court varied upward in giving Ms. Thornhill a
sentence of three years.
Until today, we have never addressed whether the §
3553(a) sentencing factors must be considered in the context
of mandatory revocation of supervised release, under
§ 3583(g), and, indeed, few other Courts of Appeals have
discussed this issue at length. If anything, as the Government
points out, our case law previously hinted that consideration
of the factors was appropriate, but not required, in this
context. See United States v. Doe, 617 F.3d 766, 772 (3d Cir.
2010). However, today we clearly hold for the first time that
such consideration is mandatory. The majority finds that the
District Court anticipated this holding and meaningfully
considered the sentencing factors under § 3553(a).
In the usual case, we might debate whether the
scattered statements of a district court resemble a discussion
of the pertinent sentencing factors. However, here, the
District Court had no inkling that an analysis of the § 3553(a)
factors was required, and as a consequence, never mentioned
the factors once.1 This was through no fault of the District
Court, conducted as it was by a “judge [and] not a prophet,”
lacking any reason to anticipate the requirement we set out
today. See United States v. Brown, 595 F.3d 498, 527 (3d
Cir. 2010). But fairness dictates that when we announce a
new rule that could impact the length of the sentence imposed
a remand for resentencing is appropriate. See id. (remanding
for resentencing where a district court, “[l]acking . . .
clairvoyance,” failed to anticipate requirement to consider
§ 3553(a) factors post-Booker); United States v. Manzella,
475 F.3d 152, 162 (3d Cir. 2007) (remanding for resentencing
upon holding that prison sentences could not be imposed for
rehabilitative purposes).
We need only review the record briefly to determine
that the District Court did not, in fact, foresee our holding and
meaningfully consider the § 3553(a) factors. The District
Court provided no explanation for its three-year, above-
guidelines sentence, beyond the bare statement that Ms.
Thornhill had “proven [her]self to be unmanageable in a free
1
“§ 3553(a)” appears only once in the transcript, in Ms.
Thornhill’s objection at the conclusion of sentencing. (App.
402.)
2
society environment.” (App. 400.)2 A defendant’s
“manageability,” whatever that might mean, is not included
among the sentencing considerations listed under § 3553(a).
Thus, the sole explanation provided by the District Court does
not show rational and meaningful consideration of the §
3553(a) factors.3 This alone necessitates a remand for
resentencing.
Likewise, the District Court’s other asides and
statements in the sentencing hearing do not reveal why Ms.
Thornhill was sentenced to three years’ imprisonment, let
alone indicate that the sentence was based on the § 3553(a)
2
Though this was the sole explanation provided upon the
imposition of sentence, the majority makes only a passing
reference to it, noting that the comment “signaled the need for
incapacitation . . . .” (Majority Op. at 34.) The remainder of
the statements cited by the majority were made at different
points in the hearing, some during testimony, others during
argument, and all well before sentence was imposed, such
that there is no indication which, if any of them, factored into
the District Court’s decision to sentence Ms. Thornhill above
the guidelines.
3
Rita v. United States, 551 U.S. 338, 359 (2007), cited by the
majority for the proposition that the “context and the record”
can support the sentence here, is inapposite. That case
concerned a within-guidelines sentence, and the Supreme
Court found that a specific explanation was not required in
such a “conceptually simple” case. Id. at 359. By contrast,
the Court noted, “[w]here the judge imposes a sentence
outside the Guidelines, the judge will explain why he has
done so.” Id. at 357. The sentence here was above the
guidelines, and no explanation was given.
3
factors. For example, the Court’s most detailed comment
was, in full, as follows:
The Court: That’s what we’ve been trying to give her
[defense counsel]. She’s been here, and been here, and
been here. That’s what the whole plan has been. [The
probation officer] has worked hard to try to give her a
structure, and give her psychiatric treatment, the
mental health treatment, the drug counseling. I mean,
that’s what we have been doing. So, how else are we
going to accomplish that, without forcing her into a
situation where she has to do what she has to do?
(App. 384.) The majority cites part of this remark as
evidence of the Court’s consideration of § 3553(a)(2),
involving incapacitation and deterrence. (Majority Op. at 33.)
But far from addressing any of the sentencing factors, the
Court was asking how else it was going to give Ms. Thornhill
“a structure, and give her psychiatric treatment, the mental
health treatment, the drug counseling,” except through prison
time. (App. 384.) Thus, we cannot know if the Court may
have impermissibly lengthened Ms. Thornhill’s prison term to
promote rehabilitation.4 I find that this comment does not
represent meaningful consideration of a sentencing factor, but
4
That is, the District Court potentially violated the holding of
Tapia v. United States, 131 S. Ct. 2382, 2393 (2011): “a court
may not impose or lengthen a prison sentence to enable an
offender to complete a treatment program or otherwise to
promote rehabilitation.” Several Courts of Appeals have
found this holding to extend to sentences imposed upon
revocation of supervised release. See, e.g., United States v.
Molignaro, 649 F.3d 1, 5 (1st Cir. 2011).
4
rather evidences a troubling ambiguity that should be cleared
up by a remand for resentencing.
More generally, where a defendant is sentenced
without the slightest indication that the § 3553(a) factors were
considered, our case law dictates a remand. In United States
v. Clark, cited by the majority, we held that consideration of
the § 3553(a) factors had been inadequate for a within-
guidelines sentence, even though the district court
acknowledged that it had to consider them and even provided
a “full discussion of the first relevant factor.” 726 F.3d 496,
503 (3d Cir. 2013). We held the subsequent “rote recitation
of the relevant factors . . . cannot support a conclusion that the
record as a whole reflects rational and meaningful
consideration of the factors enumerated in 18 U.S.C.
§ 3553(a). Nor can we determine, from the record before us,
that the court reasonably applied those factors to the
circumstance of the case.” Id. (citations omitted).
Accordingly, we remanded for resentencing.
Unlike Clark, the term of imprisonment in this case is
above the guidelines range. And unlike Clark, the District
Court here did not discuss any of the sentencing factors, or
even list them in a rote manner. See also United States v.
Goff, 501 F.3d 250, 256 (3d Cir. 2007) (remanding for
resentencing where, inter alia, “the District Court did not
mention § 3553(a) when it imposed its sentence, or the
necessity of applying the § 3553(a) factors under our case
law”). Nor did the Court ever refer to the substance of the
factors, such as: the need to provide just punishment,
adequate deterrence and protection of the public, as well as
the need to avoid unwarranted sentencing disparities. In sum,
the record provides no basis to conclude that the District
5
Court anticipated our decision today and meaningfully
considered the § 3553(a) factors. Indeed, it would be
surprising if the record revealed otherwise.
We simply cannot know how meaningful
consideration of the § 3553(a) factors, which we now require,
would have affected Ms. Thornhill’s sentence. Speculation
on our part as to what the Court might have been considering,
and whether those reasons coincide with § 3553(a), cannot be
enough to uphold Ms. Thornhill’s above-guidelines sentence.
In short, Ms. Thornhill deserves to have the rule announced
today applied to her case. I respectfully dissent from the
majority’s disposition.
6