United States v. Tony McAllister

JULIA SMITH GIBBONS, Circuit Judge,

concurring.

I concur in the majority opinion in its entirety but write separately to emphasize one point with respect to the appeal of Stanley Hughes. Often cryptic references in a record have meaning to the district court participants that is not apparent to us. Here, counsel for Hughes likely knew how Hughes’s criminal record compared with that of his co-defendants. The district court certainly was aware of the comparison. The reference to Hughes’s criminal record by both counsel and the district court may well have carried an unstated implication that Hughes’s criminal record compared unfavorably to that of other defendants who were more culpable in this conspiracy. But we cannot infer that implication when it is not made explicit. My instincts tell me that the very experienced, thorough district judge in this case performed exactly the analysis we require on remand and that those present likely knew his reasoning. But of course instincts cannot provide the basis for decision.