United States v. Houston

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0231p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 06-6329
v.
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JAMES E. HOUSTON, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 06-00027—James H. Jarvis, District Judge.
Argued: November 27, 2007
Decided and Filed: June 27, 2008
Before: CLAY, SUTTON, and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: David M. Eldridge, ELDRIDGE & BLAKNEY, Knoxville, Tennessee, for Appellant.
John P. MacCoon, ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for
Appellee. ON BRIEF: David M. Eldridge, Loretta G. Cravens, ELDRIDGE & BLAKNEY,
Knoxville, Tennessee, for Appellant. John P. MacCoon, ASSISTANT UNITED STATES
ATTORNEY, Chattanooga, Tennessee, for Appellee.
McKEAGUE, J., delivered the opinion of the court, in which SUTTON, J., joined. CLAY,
J. (pp. 12-16), delivered a separate dissenting opinion.
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OPINION
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McKEAGUE, Circuit Judge. Defendant-appellant appeals from a judgment sentencing him
to a prison term of twelve months and a day, followed by three years of supervised release.
Appellant contends the district court erred by granting the government’s motion to strike its
amended judgment of sentence, under which he had been sentenced to probation only. In addition,
appellant contends the reinstated original sentence is procedurally and substantively unreasonable.
Finding that the district court did not err by striking the amended judgment and that the sentence
ultimately imposed is not unreasonable, we affirm the judgment of the district court.
1
No. 06-6329 United States v. Houston Page 2
I. FACTUAL AND PROCEDURAL BACKGROUND
This appeal stems from an illegal gambling enterprise known as “the numbers.” From 2000
to 2005, defendant James E. Houston, of Knoxville, Tennessee, and several co-conspirators ran an
illegal gambling operation in the states of Alabama, Georgia and Tennessee that resembled a state
lottery in many respects. Defendant, an otherwise legitimate and apparently successful businessman,
served as the “bank” for the operation and derived substantial benefit from his participation.
In March 2006, a two-count bill of information was filed in the U.S. District Court for the
Eastern District of Tennessee, alleging that defendant conspired to conduct an illegal gambling
business involving a numbers lottery, in violation of 18 U.S.C. §§ 371 and 1955, and conspired to
launder the proceeds of an illegal gambling operation, in violation of 18 U.S.C. §§ 1956(h) and
1957. Defendant pleaded guilty to both charges in April 2006. Pursuant to the plea agreement,
defendant agreed to forfeit money and property obtained as a result of the gambling operation. The
plea agreement includes the government’s acknowledgment that defendant had provided “substantial
assistance” by encouraging his co-defendants to plead guilty, based upon which the government
agreed to file a motion for downward departure pursuant to § 5K1.1 of the Sentencing Guidelines.
The government further agreed to “represent to the Court that any lawful sentence that the Court
deems appropriate is acceptable to the United States.” Plea Agreement ¶ 7, JA 57.
Defendant was sentenced by the district court on July 19, 2006. According to the
presentence report (“PSR”) prepared by the Probation Department, defendant’s base offense level
under the Sentencing Guidelines was 12. The PSR recommended a four-level increase due to
defendant’s role as an organizer or leader of a scheme involving five or more participants, pursuant
to § 3B1.1(a) of the Guidelines. Defendant’s offense level was reduced by three levels due to his
acceptance of responsibility. Defendant’s single prior misdemeanor conviction in 1990 placed him
in criminal history category I. The resulting Guidelines sentencing range was 15 to 21 months.
Defendant did not object to the PSR.
During sentencing, the district court noted that defendant had worked hard to establish
himself as a businessman, had cooperated with the government, and had agreed to a substantial
forfeiture of property. Accordingly, the court granted the government’s motion for downward
departure. The court declined defendant’s request to impose a sentence of probation only, finding
that defendant was the “organizer,” “the main man,” whom the other co-conspirators had trusted.
Sentencing tr. pp. 16-17, JA 202-03. The court imposed a sentence of 12 months’ imprisonment on
each count, the two sentences to run concurrently. This sentence, the court observed, would afford
“adequate deterrence” and “just punishment.” Id. The court also imposed a supervised release term
of three years. Upon request of defense counsel, the court changed the prison sentence to twelve
months and a day so that defendant would be eligible for an earlier release from the Federal Bureau
of Prisons. The court then asked if the parties had any objections to the sentence. Defendant did
not object.
On July 24, 2006, five days after sentencing and prior to entry of the judgment, defendant
filed a “motion for reconsideration.” Defendant contended the sentence imposed, representing a
downward departure of three months from the low end of the advisory Guidelines range, was still
greater than necessary to comply with the purposes of sentencing set forth at 18 U.S.C. § 3553(a)(2).
He noted that the court had not expressly considered his arguments: (1) that he grew up in a
community where playing the numbers was culturally accepted; and (2) that he had a history of
assisting others in the community, had strong familial relationships, and provided support for his
children and mother. Further, he complained that the sentence was disproportionately harsh in
comparison with sentences imposed on other similarly situated defendants in the Northern Division
of the Eastern District of Tennessee. In this respect, the motion was supported by the affidavit of
defendant’s attorney, David M. Eldridge, stating in pertinent part:
No. 06-6329 United States v. Houston Page 3
Accordingly, based upon my personal experience as well as following cases in this
court since 1988, to the best of my personal knowledge, no individual who has pled
guilty to involvement in an illegal gambling business, cooperated, and received a
Motion for Downward Departure has ever been sentenced to a term of incarceration
in the Northern Division of the Eastern District of Tennessee. This category of
defendants, who have not been incarcerated, includes those who have been
denominated as an organizer or leader under the guidelines.
Eldridge aff. ¶ 5, JA 128. The motion represented that the government “does not oppose this motion
for reconsideration if the Court deems it appropriate to reconsider Mr. Houston’s sentence.” Motion
¶ 11, JA 125.
Three days later, without conducting a hearing, the district court issued a memorandum and
order granting defendant’s motion. JA 148. The court confirmed that it had previously considered
defendant’s history and personal characteristics raised in the motion for reconsideration. The court
acknowledged, however, that it had not previously considered the sentencing disparities issue. After
considering the “new information” presented by defense counsel and “independently researching”
the matter, the court concluded that defense counsel was correct and that a term of incarceration was
too harsh and greater than necessary to comply with the purposes of sentencing. Memorandum and
Order pp. 2-3, JA 149-50. The court ordered that the judgment of sentence be amended by
substituting a period of two years’ probation for the original prison term of twelve months and a day.
The judgment of sentence was entered on July 31, 2006.
On August 3, 2006, the government moved to strike the amended judgment for three reasons:
(1) because the court lacked authority to amend defendant’s sentence under Rule 35(a) of the Federal
Rules of Criminal Procedure; (2) because defendant had misrepresented the government’s position
on the motion for reconsideration; and (3) because the factual basis for the sentence reduction was
inaccurate. The district court granted the government’s motion to strike the amended judgment on
October 3, 2006. In a 10-page memorandum and order, the court explained that it had granted the
motion for reconsideration and reduced defendant’s sentence for two reasons. First, the court had
been persuaded by defendant’s new argument, as well as its own independent research, concerning
the need to avoid unwarranted sentence disparities under 18 U.S.C. § 3553(a)(6). Memorandum and
Order p. 3, JA 172. Second, despite being “acutely aware that it was on legal ground of questionable
firmness when it granted defendant’s motion for reconsideration,” the court had relied on
defendant’s representation that the government had no objection to the motion. Id. at 9, JA 178.
When the government belatedly raised its objection through the motion to strike, explaining
that the earlier, inaccurate representation of its position had been the product of a
miscommunication, the court was constrained to acknowledge that it was without authority to
correct the original sentence under Rule 35(a). Id. at 8-9, JA 177-78. The court nevertheless
maintained that it had not fully considered the sentence disparities factor when it originally
sentenced defendant. Id. at 9, JA 178. Further, the court acknowledged that the government’s
opposition to the reduced sentence demonstrated that the record remained incomplete and inadequate
to enable fair comparison of similarly situated defendants. Hence, the record remained insufficiently
developed to permit a determination whether defendant’s twelve-months-and-a-day prison term
constituted an unwarranted disparity under § 3553(a)(6). Yet, being without authority to alter the
originally imposed sentence, the court was “compelled to reimpose the sentence originally
announced on July 19, 2006.” Id. at 10, JA 179. The amended judgment was entered on October
10, 2006 and this appeal followed.
No. 06-6329 United States v. Houston Page 4
II. ANALYSIS
A. Order Striking Amended Judgment
The district court concluded that it did not have authority to correct the originally
pronounced sentence and therefore granted the motion to strike. Defendant contends that the district
court erred when it granted the government’s motion to strike the amended judgment, insisting that
the district court did have authority to correct “clear error” in the original sentencing. The asserted
“clear error” the district court was asked to correct was twofold. See Memorandum in Support of
Reconsideration pp. 4-6, JA 132-34. First, defendant contended the district court had not adequately
explained why its consideration of two factors under 18 U.S.C. § 3553(a)(1) did not warrant a
downward variance greater than three months. Specifically, these two asserted factors are “the
nature and circumstances of the offense” (i.e., the fact that defendant grew up in a community where
playing the numbers was culturally accepted); and “the history and characteristics of the defendant”
(i.e., his strong familial relationships and his history of generosity to others and good citizenship).
Id. Second, the district court was said not to have expressly considered, under 18 U.S.C.
§ 3553(a)(6), “the need to avoid unwarranted sentence disparities.” Arguing that these failures by
the district court represented “clear errors” that were correctable by the district court, defendant now
would have us vacate the order striking the amended sentence and remand the case to the district
court for entry of the original amended sentence of two years’ probation.
Whether the district court had the authority to resentence defendant is a question of law
subject to de novo review. United States v. Ross, 245 F.3d 577, 585 (6th Cir. 2001). The authority
of a district court to resentence a defendant is limited by statute. Id. at 585.1 Specifically, 18 U.S.C.
§ 3582(c)(1)(B) provides in relevant part that a “court may not modify a term of imprisonment once
it has been imposed except that . . . the court may modify an imposed sentence of imprisonment to
the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal
Procedure.”
Rule 35(a) represents the only arguably applicable authority for correction of the original
sentence in this case. It provides that, “[w]ithin 7 days after sentencing, the court may correct a
sentence that resulted from arithmetical, technical, or other clear error.” The authority to correct a
sentence conferred by Rule 35(a) is “extremely limited.” United States v. Arroyo, 434 F.3d 835, 838
(6th Cir. 2006). As the Rule 35 Advisory Committee Note makes clear, the rule “is not intended to
afford the court the opportunity to reconsider the application or interpretation of the sentencing
guidelines or . . . simply to change its mind about the appropriateness of the sentence . . . [or] to
reopen issues previously resolved at the sentencing hearing through the exercise of the court’s
discretion with regard to the application of the sentencing guidelines.” See also United States v.
Galvan-Perez, 291 F.3d 401, 406-07 (6th Cir. 2002) (noting that a sentencing judge may not use
Rule 35(a) to alter a discretionary decision merely because he later had a “change of heart”). Unless
an error is an “obvious error or mistake” that would have resulted in a remand by the appellate court,
it is outside of Rule 35(a)’s narrow purview. Arroyo, 434 F.3d at 838.
The original sentence imposed by the district court in this case was not marked by any
arithmetical or technical error. Hence, the district court had authority to modify its original sentence
only if it suffered from some other “clear error” that would have necessitated an appellate remand
for re-sentencing. In granting defendant’s motion for reconsideration, the district court did not
identify such an error. Rather, it relied on the government’s purported non-objection to
reconsideration and the “new information” produced by defense counsel and confirmed by the
1
The Ross court rejected the argument that a sentencing court has any inherent power to modify a sentence of
imprisonment. 245 F.3d at 586.
No. 06-6329 United States v. Houston Page 5
court’s own independent research concerning sentences imposed on other “similarly situated”
defendants in the Northern Division of the Eastern District of Tennessee. In other words, based on
new information, the district court reconsidered, or changed its mind concerning, the extent of the
appropriate downward adjustment from the low end of the advisory Guidelines sentencing range.
When the government belatedly lodged its objection, the district court characterized its
amended sentence as having been premised on a “perceived misinterpretation of sentencing factors,”
an error the district court conceded was beyond its power to correct, citing United States v. Durham,
178 F.3d 796, 800 (6th Cir. 1999). Memorandum and Order p. 8, JA 177. Thus, although the
district court regretted not having fully considered the sentence disparities issue when it first
sentenced defendant, it concluded that its failure to do so did not constitute the sort of “clear error”
that it was at liberty to correct. In this, defendant contends, the district court erred. For the reasons
that follow, we disagree.
The gravamen of defendant’s argument is that the district court’s failure to explicitly
consider the required § 3553(a) factors constitutes “clear error” within the meaning of Rule 35(a),
i.e., an error that obviously “would have resulted in remand by this Court.” Arroyo, 434 F.3d at 838(quoting Galvan-Perez, 291 F.3d at 407). In support of this argument, defendant has relied in part
on United States v. Vonner, 452 F.3d 560 (6th Cir. 2006) (vacating a sentence for failure to provide
adequate explanation). See Memorandum in Support of Reconsideration pp. 4-6, JA 132-34. The
Vonner decision has been vacated, however, by the Sixth Circuit sitting en banc, which recently
issued a new ruling, applying plain-error review and affirming the district court judgment. United
States v. Vonner, 516 F.3d 382 (6th Cir. 2008). The en banc court’s Vonner decision is important
to our resolution of the instant appeal for a couple of reasons.
As a threshold matter, Vonner applied plain-error review, per United States v. Bostic, 371
F.3d 865 (6th Cir. 2004), because defendant Vonner had not, when given the opportunity at
sentencing, expressly stated an objection to the adequacy of the court’s explanation for the sentence.
Vonner, 516 F.3d at 385-86. This teaching is relevant here, too, as we consider whether the district
court’s asserted errors were of such a nature that they should have been viewed, in the eyes of the
district judge, as obviously warranting an appellate remand. Vonner confirms the already well-
established Bostic rule: If, at the conclusion of a sentencing hearing, the judge asks the parties
whether they have any objections to the proposed sentence that have not previously been raised, and
the relevant party does not object, then plain-error review applies on appeal to those arguments not
preserved in the district court. Id. at 385. Here, when the district court asked the parties whether
there was any objection to the proposed sentence, no objection was made. That is, defendant did
not challenge the adequacy of the court’s explanation of its sentence and did not raise the sentence
disparities issue. It follows that appellate scrutiny would have been limited to plain-error review.
And because, as we demonstrate below, defendant has not shown plain error, we agree with the
district court that he did not show clear error either.
Under plain-error review, relief is granted only under “exceptional circumstances.” Id. at
386. That is, defendant Houston would have been required to show “(1) error (2) that was ‘obvious
or clear,’ (3) that ‘affected defendant’s substantial rights’ and (4) that ‘affected the fairness,
integrity, or public reputation of the judicial proceedings.’” Id. (quoting United States v. Gardiner,
463 F.3d 445, 459 (6th Cir. 2006)).
In Vonner, the en banc court applied plain-error review to the question whether re-sentencing
was required where the district court had imposed a within-Guidelines sentence without explicitly
stating why it denied the defendant’s request for a downward variance. The court acknowledged
that the sentencing court’s explanation was not “ideal;” that it failed to specifically address all of
Vonner’s arguments for leniency. Yet, the record demonstrated that the district court had considered
the nature and circumstances of the offense and the history and characteristics of the defendant.
No. 06-6329 United States v. Houston Page 6
Nothing in the record suggested that the sentencing court did not listen to, consider and understand
every argument Vonner made. Citing Rita v. United States, — U.S. — , 127 S.Ct. 2456, 2469
(2007), the court observed that a lengthy reasoned explanation was not required because the request
for leniency was “conceptually straightforward.” Vonner, 516 F.3d at 388. Further, the court noted
that Vonner’s arguments in mitigation were not disputed by the government and therefore did not
amount to “controverted matters” on which the district court was required to rule under Rule 32 of
the Federal Rules of Criminal Procedure, Fed. R. Crim. P. 32(i)(3)(B). Id. at 388-89. Hence, the
en banc court concluded the sentencing court had not plainly violated its duty to analyze the relevant
sentencing factors or Vonner’s arguments for leniency. Id. Vonner’s inadequate-explanation
objection was overruled, his procedural-unreasonableness challenge was denied, and the district
court’s judgment of sentence was affirmed.
Here, defendant Houston’s request for reconsideration was based on two asserted errors.
First, he argued that the district court did not adequately explain why such circumstances as cultural
acceptance of gambling, familial relationships, and his history of generosity were not deemed to
merit a greater-than-three-months downward variance. Id. In response, the district court confirmed
that it had fully considered these circumstances. Memorandum and Order p. 2, JA 149;
Memorandum and Order p. 2, JA 171. Clearly, the district court’s mere failure to fully explain the
extent of its consideration of sentencing factors, which it had in fact fully considered, could not have
been viewed by the district court as plain error so affecting Houston’s substantial rights and
impugning the fairness of the proceeding that appellate correction would have been clearly
warranted. This conclusion is further buttressed, of course, by Vonner’s holding on the merits of
a similar adequacy-of-explanation challenge. The district court did not err, therefore, in its
determination that this first basis for reconsideration did not constitute “clear error” that it had
authority to correct under Rule 35(a).
The second basis for defendant’s motion for reconsideration was the district court’s failure
to expressly consider the need to avoid unwarranted sentence disparities. The district court freely
acknowledged that it had not fully considered this factor. Based on defense counsel’s affidavit,
attesting to his knowledge and belief concerning sentences received by other gambling offenders
in the area, the district court undertook confirmatory research and, in view of the government’s
supposed non-objection, amended the original sentence. “In light of this new information,” the court
explained, “[and] [g]iving due weight to the [sentencing] factors, the court is now of the opinion that
a sentence of twelve months and one day is greater than necessary . . .” Memorandum and Order
p. 3, JA 150. In other words, the district judge changed his mind in his application of the Sentencing
Guidelines, thereby acting outside the bounds of his authority under Rule 35(a), as he later freely
conceded.
Further, this sentence disparities factor was not mentioned in the PSR (to which defendant
did not object), and neither party made an issue of the factor prior to or during the sentencing
hearing. Because defendant did not preserve the issue per Bostic, an appellate challenge to the
sentence on this basis would also have been subject to plain error review. It is also apparent that,
since the sentence disparities factor had not been raised, it had not become a manifestly “relevant”
sentencing factor at the time of sentencing and, per Vonner, the court’s failure to consider it could
hardly have been viewed as “clear” or “plain” error, if error at all. See also United States v.
Kirchhof, 505 F.3d 409, 413 (6th Cir. 2007) (“If the record demonstrates that the sentencing court
addressed the relevant factors in reaching its conclusion, the court need not explicitly consider each
of the § 3553(a) factors or engage in a rote listing or some other ritualistic incantation of the
factors.” (citing United States v. Dexta, 470 F.3d 612, 614-15 (6th Cir. 2006)(emphasis added));
United States v. Simmons, 501 F.3d 620, 625 (6th Cir. 2007) (holding that district judge is required
to explicitly consider only those factors raised by defendant or otherwise particularly relevant).
No. 06-6329 United States v. Houston Page 7
In Simmons, moreover, the court specifically addressed the § 3553(a)(6) sentence disparities
issue and held that the sentencing court was under a duty to explicitly consider it only if raised by
the defendant or if it was otherwise shown to be “particularly relevant.” Simmons, 501 F.3d at 625.
See also United States v. Husein, 478 F.3d 318, 330-32 (6th Cir. 2007) (upholding sentence over
procedural-unreasonableness challenge where five of six sentencing factors were considered, even
though § 3553(a)(6) was left undiscussed). Otherwise, a failure to explicitly consider the
§ 3553(a)(6) factor could be deemed to evidence a procedurally unreasonable sentence only if the
failure were shown to stem from a “complete ignorance of that factor.” Simmons, 501 F.3d at 626.
Here, the sentence disparities issue had not been raised by defendant at the time of
sentencing and there was no reason to believe it was particularly relevant. When, post-sentencing,
the sentencing judge was confronted with “new information” concerning sentencing practices in the
vicinity, he believed that he had ignored this factor. In this belief, however, the sentencing judge
misconceived the nature of the factor. “Subsection 3553(a)(6) is concerned with national disparities
among the many defendants with similar criminal backgrounds convicted of similar criminal
conduct.” Id. at 623 (emphasis added). This factor is designed to “ensure nationally uniform
sentences among like offenders.” Id. Considering that one of the fundamental purposes of the
Guidelines is to help maintain national uniformity in sentences, and considering that most sentences
are within the Guidelines, the Guidelines themselves represent the best indication of national
sentencing practices. Id. at 626.
Hence, by initially and correctly determining what defendant Houston’s advisory Guidelines
range would be, the sentencing court necessarily—albeit implicitly and even unwittingly—took
account of the national uniformity concern embodied in § 3553(a)(6). See id. Contrary to his own
belief, the sentencing judge did not fail to consider the sentence disparities factor. The Supreme
Court recently elaborated on this very point:
As with the seriousness of the offense conduct, avoidance of unwarranted disparities
was clearly considered by the Sentencing Commission when setting the Guidelines
ranges. Since the District Judge correctly calculated and carefully reviewed the
Guidelines range, he necessarily gave significant weight and consideration to the
need to avoid unwarranted disparities.
Gall v. United States, — U.S. — , 128 S.Ct. 586, 599 (2007). See also United States v. Phinazee,
515 F.3d 511, 520 (6th Cir. 2008) (observing that Guidelines as a whole embrace the need to avoid
unwarranted sentence disparities). The district court did not, therefore, clearly err by failing to
expressly describe its consideration of the unasserted sentence disparities issue.
Moreover, the representations made by defense counsel in support of reconsideration, i.e.,
the representations that triggered the sentencing judge’s misapprehension that he had committed
error, did not even implicate national sentence disparities. They pertained to local sentence
disparities, which are not a concern of § 3553(a)(6). The district judge, in his discretion, might have
considered local disparities to be a relevant consideration if timely raised. We cannot hold,
however, that he clearly erred by failing to take such a non-mandatory consideration into account
where it had not been timely raised.
We therefore conclude that neither of the asserted grounds for reconsideration presented the
sort of clear error that would have warranted appellate remand. The district court lacked authority
under Rule 35(a) to alter the sentence originally imposed. Of course, this is the very conclusion that
the district court correctly reached when it granted the government’s motion to strike the amended
No. 06-6329 United States v. Houston Page 8
sentence.2 Inasmuch as this is the only basis on which defendant Houston challenges the district
court’s order granting the government’s motion to strike, we overrule the objection and uphold the
order vacating the amended judgment.3
As a consequence of that order, the district court proceeded to re-impose the original
sentence, sentencing defendant to a prison term of twelve months and a day. Defendant challenges
this sentence as procedurally and substantively unreasonable.
B. Procedural Unreasonableness
Even though the sentence ultimately imposed represents a three-month downward variance
from the low-end of the advisory Guidelines range, defendant contends the sentence is marked by
procedural unreasonableness because the sentencing judge admitted that he failed to fully consider
the § 3553(a)(6) sentence disparities issue. Had this factor been properly considered, defendant
argues, it is evident that the sentencing judge would have granted a greater downward variance.
That is, notwithstanding our holding that the district court did not “clearly err,” defendant maintains
that the court “erred” by imposing a procedurally unreasonable sentence.
We review a judgment of sentence for reasonableness under an abuse-of-discretion standard.
Gall, 128 S.Ct. at 594. To obtain relief, an appellant must show that the sentence is either
procedurally or substantively unreasonable. Id. at 597; United States v. Vowell, 516 F.3d 503, 509-
10 (6th Cir. 2008). A sentence may be held procedurally unreasonable if it is marked by “significant
procedural error, such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including
an explanation for any deviation from the Guidelines range.” Gall, 128 S.Ct. at 597. Hence, a
sentencing court’s failure to consider a § 3553(a) factor may render a sentence procedurally
unreasonable.
As the above analysis makes clear, defendant Houston’s sentencing was not procedurally
infirm. Again, because defendant did not timely object to the court’s failure to explicitly consider
the matter of sentence disparities, and raised the issue only after sentencing, at a time when the
district court was without authority to alter the sentence already imposed, we review only for plain
error. Vonner, 516 F.3d at 386, 392 (“While we do not require defendants to challenge the
“reasonableness” of their sentences in front of the district court, we surely should apply plain-error
review to any arguments for leniency that the defendant does not present to the trial court.”).
The first step in plain-error review is to determine whether the lower court erred. Did the
district court commit procedural error? The district judge believed, post-sentencing, that he had
failed to consider § 3553(a)(6) and that this failure constituted error, albeit not “clear error.” In the
foregoing analysis, however, we have explained that it was the district judge’s belief, rather than the
sentence imposed, that was erroneous. By correctly calculating defendant Houston’s Guidelines
2
This conclusion is further buttressed, as the district court ultimately recognized, by the fact that, in the
sentencing context, “there is simply no such thing as a ‘motion to reconsider’ an otherwise final sentence.” United States
v. Dotz, 455 F.3d 644, 648 (6th Cir. 2006). Rather, as discussed above, the sentencing court’s authority to alter a
sentence of imprisonment after it has been imposed is narrowly circumscribed, per 18 U.S.C. § 3582(c)(1)(B).
3
In his reply brief, defendant argues that the government should have been deemed barred from moving to strike
the amended sentence in the first place. In ¶ 7 of the plea agreement, defendant correctly asserts, the prosecution had
agreed to accept “any lawful sentence that the Court deemed appropriate.” JA 57. The motion to strike did not
contravene this promise, however. As the foregoing analysis demonstrates, the amended sentence was beyond the court’s
authority to issue and was, to this extent, not a “lawful sentence.” See United States v. Moncivais, 492 F.3d 652, 662
(6th Cir. 2007) (“Plea agreements are to be enforced according to their terms.”).
No. 06-6329 United States v. Houston Page 9
range, the district judge had necessarily taken into account the need to avoid unwarranted sentence
disparities, viewed nationally. The matter of supposed local sentence disparities, brought to his
attention post-sentencing, which he believed could be relevant, is not a matter within the
contemplation of § 3553(a)(6). Notwithstanding the district judge’s post-sentencing
misunderstanding about the nature of this sentencing factor, the sentence ultimately imposed is not
procedurally infirm because he failed to consider an unasserted, non-mandatory factor.4 Contrary
to defendant’s argument, the record demonstrates that the district court did adequately consider the
national sentencing disparities concern embodied in § 3553(a)(6). We therefore reject defendant’s
procedural-unreasonableness challenge.5 6
C. Substantive Unreasonableness
Defendant also argues that his sentence is substantively unreasonable, i.e., greater than
necessary to comply with the purposes of sentencing. Defendant need not have asserted a
substantive-unreasonableness objection in the district court to preserve the issue for appeal. Vonner,
516 F.3d at 389 (observing that, because “reasonableness” is the standard of appellate review, a
litigant has no duty to object in the district court to the unreasonableness of the length of the
sentence). Hence, we review the substantive-unreasonableness challenge not for plain error, but for
abuse of discretion. The Supreme Court has defined the scope of this review as follows:
When conducting this review, the court will, of course, take into account the totality
of the circumstances, including the extent of any variance from the Guidelines range.
If the sentence is within the Guidelines range, the appellate court may, but is not
required to, apply a presumption of reasonableness. [Rita v. United States, — U.S.
— , 127 S.Ct. 2456, 2462-68 (2007)]. But if the sentence is outside the Guidelines
range, the court may not apply a presumption of unreasonableness. It may consider
the extent of the deviation, but must give due deference to the district court’s decision
that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact that
4
To be sure, defendant was free to argue for leniency, prior to or at the sentencing hearing, based on local trends
in sentencing of gambling offenders. If he had so argued, it would have been within the district court’s discretion to
accept the argument as warranting an even greater downward variance. We hold simply that the sentence imposed is
not procedurally unreasonable merely because the court did not consider a potentially relevant, but unasserted, non-
mandatory sentencing factor.
5
This case is distinguishable from United States v. Christman, 509 F.3d 299 (6th Cir. 2007), where a sentence
which the district court acknowledged was marked by procedural error, but which the district court was powerless to
correct under Rule 35(a), was vacated and the matter remanded for re-sentencing. In Christman, the sentencing judge
had committed a legal error which impacted the length of sentence; here, the district judge erroneously believed he had
committed legal error, when in fact he had not.
6
In his separate opinion, our dissenting colleague strains to characterize the district court as confused and our
affirmance as “astounding” and “inexplicable.” The characterizations are inapt.
Twice, the dissent describes the district court as having gotten “turned around.” In actuality, the “turned
around” reference in the sentencing transcript, JA 188, does not evidence confusion in the sentencing proceeding at all.
Rather, it is derived from a quip made by the district judge before the sentencing even began as he entered the courtroom
and reacted, ostensibly, to the defendant and his counsel having seated themselves at the table ordinarily occupied by
the Assistant U.S. Attorney. It was a trivial irregularity that played no role in the sentencing proceeding.
No less inaccurate is the dissent’s description of our procedural-unreasonableness analysis as astounding and
inexplicable. As explained in quite some detail, our affirmance is the product of rather ordinary application of plain-error
review. Our dissenting colleague would prefer not to be constrained by plain-error review. Yet, as justification for
avoiding the clear, well-established and binding teaching of Sixth Circuit rulings like Vonner and Bostic, the dissent cites
no authority but an Eighth Circuit opinion, United States v. Ellis, 417 F.3d 931, 933 (8th Cir. 2005). Ellis carries no
weight in this context, however, because the Eighth Circuit, in its application of Rule 35(a), was unconstrained by a
Bostic-type prophylactic rule, whereas we remain bound by Bostic.
No. 06-6329 United States v. Houston Page 10
the appellate court might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.
Gall, 128 S.Ct. at 597.
Arguably, the presumption of reasonableness validated in Rita, as recognized in Gall, may
not apply here, as the district court did not impose a sentence within the advisory Guidelines range,
but granted a three-month downward variance from the low end of the range. See Phinazee, 515 F.3d
at 514; Kirchhof, 505 F.3d at 414-15. Yet, the fact that the sentence imposed is outside the
Guidelines range does not give rise to a presumption of unreasonableness, Gall, 128 S.Ct. at 597,
especially where the variance results in a sentence even more favorable to the challenging defendant
than a within-Guidelines sentence. After determining that the district court made no significant
procedural error in calculating the Guidelines range, we must assess the substantive reasonableness
of the sentence in light of the totality of the circumstances, giving “due deference” to the sentencing
judge, in recognition of his greater familiarity with the case, his superior position to find facts and
assess credibility, and the institutional advantage that comes with frequent sentencing of offenders.
Id. at 597-98.
We have already explained why the district court’s failure to explicitly consider § 3553(a)(6)
was not a significant procedural error. Defendant maintains the sentence is substantively
unreasonable because the three-month downward variance granted in the original sentence is
insufficient. Defendant insists that the original amended sentence, imposing a two-year term of
probation and no term of imprisonment, was sufficient to comply with the purposes of sentencing.
This is said to be clearly evidenced by the fact that the district judge, when he believed he had the
discretion to do so because the government had no objection, amended the sentence to eliminate
incarceration. Defendant thus urges us to defer to the district judge’s exercise of discretion in the
second of the three sentencing rulings, rather than the first and third.
The district judge’s ambivalence clearly stemmed in part from his misunderstanding about
the government’s position, but even more fundamentally from his misunderstanding of the sentence
disparities factor. Whether he would have continued to question the fairness of the sentence if he had
properly understood the requirements of § 3553(a)(6) is a matter of sheer speculation. Speculation,
however, will not support a holding that the district judge abused his discretion when he initially (and
ultimately) granted a three-month downward variance and imposed a sentence of twelve months and
a day. To the contrary, the sentencing transcript and opinion vacating the original amended sentence
affirmatively demonstrate that the sentence originally (and ultimately) imposed is not unreasonable
in length.
No one has challenged the correctness of the advisory Guidelines range identified by the
district judge, being fifteen to twenty-one months. After identifying this range and deciding to grant
the government’s motion for downward variance based on defendant’s substantial assistance, the
sentencing judge engaged in a weighing of circumstances. The district judge expressly considered
that defendant profited greatly from his unlawful conduct; that he conducted the illegal gambling
business for over five years; that he was the organizer of this criminal enterprise and had persuaded
other “good people” who trusted him to become involved; and that defendant had a prior criminal
history—albeit not a terribly serious one. Hrg. tr. pp. 14-16, JA 200-02. The judge also took note
of mitigating circumstances, i.e., that defendant had cooperated with the government and had agreed
to forfeit substantial property to the government; that defendant had strong family ties and
responsibilities; and that he had been a good citizen, supporting local civic organizations and helping
others less privileged than himself. Id.; Memorandum and Order p. 2, JA 149. The district judge
concluded that a prison sentence of twelve months and a day afforded “adequate deterrence” and “just
punishment.” Hrg. tr. pp. 16-17, JA 202-03.
No. 06-6329 United States v. Houston Page 11
The district judge thus appears to have reasonably weighed the totality of the circumstances
in arriving at a sentence. The district judge also appears to have reasonably justified the extent of the
variance granted. Apart from his contention that the sentence is unreasonably long in comparison
with sentences imposed on other local gambling offenders, defendant has not explained why this
sentence should be deemed so unreasonably long as to constitute an abuse of discretion. Even if the
local sentence disparities issue were deemed to have been timely raised below, the record was not
sufficiently developed, as the district court recognized, to enable a sound determination that the other
putatively comparable offenders were in fact similarly situated in all relevant respects. Defendant’s
substantive-unreasonableness argument thus boils down to either (1) a contention that the sentencing
judge should have weighed the circumstances differently, or (2) a mere allegation that the sentence
is greater than necessary. Both contentions are beyond the scope of proper appellate review for
substantive unreasonableness. See United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008)
(recognizing that substantive-unreasonableness review does not look to whether the appellate court
would have imposed the same sentence in the first instance); Phinazee, 515 F.3d at 519 (observing
that since review is not de novo, the appellate court must be wary to avoid substituting its judgment
for that of the district court).
Defendant has not carried his burden of demonstrating that the sentence ultimately imposed
represents an abuse of discretion. In fact, he has failed to identify a single Sixth Circuit case in which
a sentence reflecting a downward variance from the advisory Guidelines range was vacated because
unreasonably long. See Phinazee, 515 F.3d at 519. According due deference to the district judge’s
discretion in assessing the extent of the downward variance warranted by the circumstances properly
before him, see Gall, 128 S.Ct. at 597-98, we therefore overrule defendant’s substantive-
unreasonableness challenge as well.
III. CONCLUSION
Notwithstanding the confused nature of post-sentencing proceedings in the district court, we
conclude that the sentence originally, and ultimately, imposed is marked neither by clear error that
was correctable by the district court under Rule 35(a) of the Federal Rules of Criminal Procedure,
nor by other procedural or substantive unreasonableness. Accordingly, we AFFIRM the judgment
of the district court.
No. 06-6329 United States v. Houston Page 12
________________
DISSENT
________________
CLAY, Circuit Judge, dissenting. The sentence imposed by the district court in this case is
a prime example of a sentencing proceeding gone awry. Indeed, the district court handed down a
sentence which was rife with procedural error as a result of its failure to comply with § 3553(a), the
Sentencing Guidelines, or Rule 35(a). In short, the sentence imposed by the district court was
improper and legally deficient. Thus, it is incumbent upon this Court to vacate the sentence and
remand for resentencing. Because the majority goes to great pains to avoid this basic duty in the face
of obvious and repeated sentencing error, I respectfully dissent.
I.
A simple recitation of the facts in this case demonstrates that Houston’s sentence is
procedurally infirm and should therefore be remanded for resentencing. In March of 2006, Houston
entered into a plea agreement with the government whereby Houston agreed to plead guilty to the
offenses enumerated in a two count bill of information. The bill of information alleged that Houston
participated in a conspiracy to conduct an illegal gambling enterprise between 2000 and 2005 in
violation of 18 U.S.C. § 371 as well as a conspiracy to launder the proceeds of an illegal gambling
activity in violation of 18 U.S.C. §§ 1956(h) and 1957. Under the terms of the plea agreement,
Houston agreed to forfeit upwards of $2 million in money and property and the government agreed
to represent that Houston provided substantial assistance by truthfully describing his criminal activity
and encouraging others to plead guilty.
Thereafter, on July 19, 2006, Houston appeared before the district court for sentencing where
it appears that the district judge referred to the proceedings as having gotten “turned around.”1
During the hearing, defense counsel made a presentation regarding Houston’s age, character, business
acumen and history of supporting his family, including his elderly mother, and the less fortunate.
Houston argued that the district court should take into consideration those personal characteristics
and the fact that he observed “the numbers” growing up “as part of a community where playing the
numbers was culturally accepted” and impose a term of probation. (J.A. at 90)
The district court, however, brushed Houston’s arguments aside without discussion and noted
in a cursory fashion that Houston was “the organizer of this thing,” the “main man” of the gambling
conspiracy, and that the sentence was imposed
[b]ased upon the nature and circumstances of the offense and the time it went on[,]
plus your history of working hard, but you have been in a little trouble in your life,
not much, but some. Based upon the Guideline range[,] which is what, 15 months,
15 to 21 months. Based upon the fact that you cooperated and the government has
made a motion for downward departure under Sentencing Guideline 5K1.1 . . . .
(J.A. at 200) In the course of this explanation, the district court did not discuss the § 3553(a) factors
in any meaningful way. Instead, following this terse explanation, the district court sentenced Houston
to a term of 12 months and one day of imprisonment.
1
Contrary to the majority’s contention, I do not entirely attribute the reference to the sentencing getting “turned
around” to any “quip” made by the district judge on the record. Indeed, the improprieties that occurred in the instant
case are not so easily captured by any one statement of the district court. Rather, it is clear from simply reading the entire
record, including the initial sentencing transcript, that the sentencing was confused and thus the “turned around”
reference is appropriate.
No. 06-6329 United States v. Houston Page 13
After sentencing, Houston filed a “motion for reconsideration of the court’s sentencing
decision.” In the motion, Houston questioned the district court’s consideration of his individual
characteristics, the adequacy of the district court’s explanation at sentencing, and the district court’s
consideration of unwarranted sentencing disparities. Houston contended that the district court failed
to consider unwarranted sentencing disparities because no similarly situated defendant–i.e.,
individuals who had been convicted of an illegal gambling offense and cooperated with law
enforcement–had been sentenced to a term of incarceration by the United States District Court for
the Eastern District of Tennessee. Houston, through counsel, averred that defendants in illegal
gambling cases who cooperated with the government had routinely been sentenced to probation.
Consequently, Houston argued that the district court should similarly impose a sentence of probation
rather than a term of incarceration to avoid unwarranted sentencing disparities.
In response to the motion, the district judge stated that he had “considered” Houston’s
personal characteristics and his history of civic engagement. The district judge, however, did not
describe how he considered these characteristics or elaborate on his reasoning for the imposition of
the initial 12 month sentence. Nevertheless, the district judge acknowledged that he had not
considered “unwarranted sentencing disparities” and that Houston should be resentenced to a term
of probation based on the sentences of similarly situated defendants. The district court reached this
conclusion after conducting “independent research” and without any input or argument from the
government. Although the district court said it knew it was on “questionable legal grounds,” the
court amended Houston’s sentence to reflect a two year term of probation rather than 12 months of
incarceration.
A few days later, apparently turned around once again, the district court reversed course and
reinstated the 12 month and one day term of incarceration after an objection was lodged by the
government. The government alleged that the district court was without jurisdiction to “reconsider”
the sentence under Rule 35(a) of the Federal Rules of Criminal Procedure and that the factual basis
upon which the district court made its revised sentencing determination was flawed. The district
court agreed that it was without authority to resentence Houston and therefore struck the amended
judgment. Thereafter, the district court reinstated Houston’s 12 month and one day sentence. The
district judge, however, continued to maintain that he had not fairly sentenced Houston and that the
12 month and one day sentence was excessive.
II.
Contrary to the conclusion reached by the majority, these facts demonstrate that the district
court committed significant procedural errors that rendered Houston’s sentence unreasonable. To
uphold such a procedurally infirm sentence, as the majority seems content to do, is to abdicate this
Court’s responsibility to insure constitutionally sound sentencing practices.
Under Gall v. United States, 128 S.Ct. 586, 597 (2007), this Court must “ensure that the
district court committed no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence–including an explanation for any deviation from the Guidelines range.”
In the instant case, given all of the twists and turns that occurred during sentencing, it is clear that
the district court fell well below the procedural benchmarks established by the Supreme Court for at
least three reasons.
First, during the initial sentencing there was no indication that the district court considered
Houston’s arguments regarding his family, cultural history or philanthropy; nor did the district court
engage in an adequate explanation of the rationale behind the sentence ultimately imposed. As the
Supreme Court recently noted in Gall, “[a]fter settling on the appropriate sentence, [the district judge]
No. 06-6329 United States v. Houston Page 14
must adequately explain the chosen sentence to allow for meaningful appellate review and to promote
the perception of fair sentencing.” 128 S.Ct. at 597. Even a cursory review of the sentencing
transcript reveals that the district judge did not reference the arguments made by Houston during the
brief statement made prior to the imposition of Houston’s initial sentence. Thus, in failing to explain
the basis for Houston’s sentence, the district court ran afoul of the procedural requirements of United
States v. Booker, 543 U.S. 220 (2005), and its progeny and should therefore be reversed. See United
States v. Klups, 514 F.3d 532, 537 (6th Cir. 2008); United States v. Thomas, 498 F.3d 336, 340-41
(6th Cir. 2007).
Indeed, the majority acknowledges that the district court did not “fully explain the extent of
its consideration of [the] sentencing factors.” Slip Op. at 6. Astoundingly, however, the majority
refuses to vacate and remand Houston’s sentence, finding no fault in the district court’s explanation,
or lack thereof. This refusal to vacate Houston’s sentence flies in the face of well-settled precedent
which holds that “[r]eversable procedural error occurs if the sentencing judge fails to ‘set forth
enough [of a statement of reasons] to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decisionmaking authority.’” United
States v. Bolds, 511 F.3d 568, 580 (6th Cir. 2007) (quoting Rita v. United States, 127 S.Ct. 2456,
2468 (2007)). We have long held that “when the judge makes only a conclusory reference to the
§ 3553(a) factors and does not address the defendant’s arguments regarding application of those
factors, then this Court will find the sentence unreasonable.” Klups, 514 F.3d at 537 (internal
quotations and citations omitted); see also United States v. Liou, 491 F.3d 334, 339 n.4 (6th Cir.
2007) (noting that this Court has long held that “we will vacate a sentence if the context and the
record do not make clear the court’s reasoning”). In short, well-established precedent requires
reversal where the sentencing court fails to explain to the defendant, and this Court, how it arrived
at its sentencing determination, including how it considered defense arguments and the § 3553(a)
factors. Contrary to the majority’s determination, unexplained or silent consideration of the
§ 3553(a) factors and Houston’s arguments does not satisfy the district court’s duty to explain how
it chose to exercise its “legal decisionmaking authority.” Rita, 127 S.Ct. at 2468.
Second, Houston’s sentence is rendered unreasonable by the district court’s admitted failure
to consider unwarranted sentencing disparities pursuant to § 3553(a)(6). Post-Booker, district courts
must independently “‘consider all of the § 3553(a) factors’ and ‘make an individualized assessment
based on the facts presented.’” United States v. Sedore, 512 F.3d 819, 828 (6th Cir. 2008) (Clay, J.,
concurring) (quoting Gall, 128 S.Ct. at 596-97); see also United States v. Wilms, 495 F.3d 277, 282
(6th Cir. 2007) (noting that a district court must independently consider the § 3553(a) factors at
sentencing). On a number of occasions, the Supreme Court has indicated that a district court, when
imposing a sentence, may not simply rely on the Guidelines or the Sentencing Commission’s
recommendations with respect to the appropriateness of a particular sentence. Gall, 128 S.Ct. at 596;
Rita, 127 S.Ct. at 2463. Rather, under the advisory regime announced by Booker, the Guidelines may
not be used as a crutch or shorthand for the independent exercise of judicial discretion called for by
§ 3553(a). In particular, § 3553(a)(6) tells “the sentencing judge to consider . . . the need to avoid
unwarranted sentencing disparities,” Rita, 127 S.Ct. at 2463, “among defendants with similar records
who have been found guilty of similar conduct” at sentencing. 18 U.S.C. § 3553(a)(6).
Although this Court noted in United States v. Simmons, 501 F.3d 620, 623 (6th Cir. 2007), that
“[s]ubsection 3553(a)(6) is concerned with national disparities among the many defendants with
similar criminal backgrounds convicted of similar criminal conduct,” consideration of the factor
includes an examination of regional sentencing disparities.2 As the Supreme Court noted in Rita, “the
2
The majority, relying on Simmons, dismisses the question of local or regional disparities, suggesting that they
have no bearing on the district court’s consideration of unwarranted sentencing disparities. However, Simmons reaches
no such conclusion. While Simmons stated that a district court could, in its discretion, consider sentencing disparities
as between co-defendants, it was silent regarding the interaction between consideration of regional and national
No. 06-6329 United States v. Houston Page 15
sentencing statutes envision both the sentencing judge and the Commission as carrying out the same
basic § 3553(a) objectives, the one, at retail, the other at wholesale.” 127 S.Ct. at 2463. The district
court’s “retail” consideration of the § 3553(a) factors, therefore, necessarily entailed consideration of
the regional sentencing patterns highlighted by Houston. Indeed, in Gall, the Supreme Court found
that a district court considered unwarranted sentencing disparities by inquiring “about the sentences
already imposed by a different judge on two of Gall’s codefendants.” Gall, 128 S.Ct. at 599; see also
Kimbrough v. United States,128 S.Ct. 558, 574 (2007) (noting that § 3553(a)(6) “directs district courts
to consider the need for unwarranted sentencing disparities–along with other § 3553(a) factors–when
imposing sentences. Under this instruction, district courts must take account of sentencing practices
in other courts . . . ” (emphasis in original and internal citations omitted)). Because the district court
was required to consider all of the § 3553(a) factors and the district court failed to do so when
imposing Houston’s sentence, the ultimate 12 month sentence was rendered procedurally
unreasonable. Simmons, 501 F.3d at 625-26 (noting that a “district judge could also violate procedural
reasonableness if the defendant is able to prove that the lack of explicit discussion stems from a
complete ignorance of that factor”).
Lastly, Houston’s sentence was rendered procedurally infirm by the district court’s failure to
comply with Rule 35(a) in its attempt to correct Houston’s sentence. Under Rule 35(a), “[w]ithin 7
days of sentencing, the court may correct a sentence that resulted from arithmetical, technical, or
other clear error.” Fed. R. Crim. P. 35(a). In the instant case, rather than rectifying the “clear error”
committed during the initial sentencing, the district court compounded the error. In imposing the
amended sentence, the district court failed to hear arguments from both Houston and the government
regarding sentencing disparities or the other § 3553(a) factors. Further, the district court neglected
to explain how it considered Houston’s arguments regarding his personal characteristics and history
of philanthropy in Chattanooga. Thus, both in its initial imposition of the sentence, and in its attempt
to correct the sentence initially imposed, the district court imposed a procedurally unreasonable
sentence that warrants reversal.
III.
Despite the fundamental and obvious mistakes made by the district court during the
sentencings, the majority inexplicably goes to great lengths to avoid remanding this case in order for
Houston to be resentenced. As an initial matter, the majority argues that Houston’s failure to mention
unwarranted sentencing disparities at the conclusion of his sentencing hearing subjects his procedural
reasonableness challenge to plain error review on appeal under United States v. Vonner, 516 F.3d
382 (6th Cir. 2008). In Vonner, this Court applied the rule announced in United States v. Bostic, 371
F.3d 865 (6th Cir. 2004), to procedural reasonableness challenges. Under Bostic, a district court must
give the parties an opportunity to make objections that were not previously raised to “aid the district
court in correcting any error.” Id. at 873. Any objection not raised by the conclusion of a sentencing
hearing is subject to plain error review on appeal. Id. In the instant case, Houston’s Rule 35(a)
motion did in fact bring an objection to the attention of the district court for correction regarding the
district court’s consideration of his arguments in favor of probation, the adequacy of the district
court’s sentencing explanation, and the district court’s consideration of § 3553(a)(6). In United
States v. Ellis, 417 F.3d 931, 933 (8th Cir. 2005), for example, the Eighth Circuit held that a
challenge to the mandatory imposition of the Guidelines was preserved despite the fact that it was
first raised in a post-sentencing Rule 35(a) motion. The Ellis court reasoned that because the trial
court was given “an opportunity to correct the error,” the objection was subject to review for
reasonableness, rather than plain error, on appeal. Id. The logical force of Ellis applies equally to the
sentencing disparities. 501 F.3d at 623-24.
No. 06-6329 United States v. Houston Page 16
instant case to preserve Houston’s objection.3 Consequently, “[w]hen an objection to a sentence
is preserved, we conduct a reasonableness review.” Simmons, 501 F.3d at 624. In the instant case,
under our reasonableness review, based on even a cursory review of the record, it is clear that the
sentence imposed by the district court was procedurally unreasonable.
In another effort to avoid remanding Houston’s case for resentencing, the majority suggests
that the district court did in fact consider unwarranted sentencing disparities because it considered
the Guidelines. Contrary to the majority’s determination, the district court’s consideration of the
Guidelines did not cure the district court’s failure to consider unwarranted sentencing disparities.
Although the Guidelines represent the Sentencing Commission’s “rough approximation of sentences
that might achieve § 3553(a)’s objectives,” including the need to avoid unwarranted sentencing
disparities, the district court is required to independently assess and determine whether the § 3553(a)
factors support the imposition of a particular Guidelines sentence. Rita, 127 S.Ct. at 2464; Wilms,
495 F.3d at 282.
Under the majority’s rendition of the district court’s responsibilities with respect to the
§ 3553(a) factors, however, a district court applying the Guidelines is free to ignore other factors such
as the seriousness of the offense and unwarranted sentencing disparities because such factors are
taken into account by the Sentencing Commission when fashioning the Guidelines. Not only does
the majority’s view render § 3553(a)(6) superfluous, it bears a striking resemblance to the pre-Booker
sentencing regime. Wilms, 495 F.3d at 282; United States v. Foreman, 436 F.3d 638, 644 (6th Cir.
2006). Indeed, in United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006), this Court noted that
“[a] sentence within the Guidelines carries with it no implication that the district court considered the
§ 3553(a) factors if it is not clear from the record, because, of course, under the Guidelines as
mandatory, a district court was not required to consider the § 3553(a) factors. It would be unrealistic
to now claim that a Guideline sentence implies consideration of those factors.” Because the majority
unrealistically suggests that the application of the Guidelines can substitute for independent
consideration of the § 3553(a) factors, I respectfully dissent.
IV.
I express no opinion as to what sentence should ultimately be imposed on Houston; however,
inasmuch as the district court imposed a sentence that is procedurally infirm, I would vacate
Houston’s sentence and remand for a sentencing proceeding that would appropriately conform to the
mandates of Booker and its progeny.
3
Although the majority dismisses the Eighth Circuit’s holding in Ellis as having no weight in this circuit, the
persuasiveness of Ellis’ logic is quite clear: where a defendant raises an objection to the district court through a Rule
35(a) motion and therefore gives the district court an opportunity to respond to an alleged error, plain error review is
inappropriate. Contrary to the majority’s suggestion, the issue confronting the Ellis court was the same issue that we
confront here, whether to apply plain error review to a procedural reasonableness challenge (i.e., the district court’s
application of the Guidelines as mandatory) where a defendant raises an objection in the form of a Rule 35(a) motion.
Inasmuch as we have not yet resolved the impact of a Rule 35(a) motion on our standard of review regarding a district
court’s sentencing determination, Ellis is certainly relevant and ought to inform our thinking. Indeed, this Court routinely
looks to our sister circuits for guidance when we encounter a legal question that we have not previously passed upon.
Rather than address the wisdom of plain error review under the unusual factual circumstances presented in this
case, the majority unthinkingly applies such review in its haste to affirm the district court. Such unreflective application
of plain error review not only undermines this Court’s duty to review sentences for reasonableness under Booker, it is
inconsistent with the tenets of plain error review that the majority relies upon, as Ellis demonstrates.