FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 05-10200 v. D.C. No. ALPHONSO KINZAR CARTY, CR-03-01135-RGS Defendant-Appellant.
UNITED STATES OF AMERICA, No. 05-30120 Plaintiff-Appellee, D.C. No. v. CR-02-00079- JUAN ANTONIO ZAVALA, 12-BLW Defendant-Appellant. OPINION
Appeal from the United States District Court for the District of Arizona Roger G. Strand, District Judge, Presiding
Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, District Judge, Presiding
Argued and Submitted October 6, 2006 Submission Vacated December 6, 2006 Resubmitted March 24, 2008 San Francisco, California
Filed March 24, 2008
2833 2834 UNITED STATES v. CARTY Before: Alex Kozinski, Chief Judge, Mary M. Schroeder, Stephen Reinhardt, Pamela Ann Rymer, Andrew J. Kleinfeld, Sidney R. Thomas, Barry G. Silverman, M. Margaret McKeown, Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Richard C. Tallman, Jay S. Bybee, and Carlos T. Bea, Circuit Judges.
Opinion by Judge Rymer; Concurrence by Chief Judge Kozinski; Concurrence by Judge Silverman UNITED STATES v. CARTY 2837 COUNSEL
Jeffrey T. Green, Assistant Federal Public Defender, Phoenix, Arizona (argued); Milagros A. Cisneros, Assistant Federal Public Defender, Phoenix, Arizona, for defendant-appellant Alphonso Kinzar Carty.
Dennis M. Charney, Eagle, Idaho, for defendant-appellant Juan Antonio Zavala.
Michael R. Dreeben, Department of Justice, Washington, D.C, for the plaintiff-appellee.
OPINION
RYMER, Circuit Judge:
We ordered rehearing en banc in these cases to clarify our sentencing law in the wake of United States v. Booker, 543 U.S. 220 (2005).1 Events overtook us, however, when the United States Supreme Court granted certiorari in Claiborne v. United States and Rita v. United States. As the issues were similar to those in our appeals, we deferred submission pend- ing the Court’s decisions.
The Court rendered its opinion in Rita on June 21, 2007, holding that a court of appeals may presume that the sentence is reasonable when a district judge’s discretionary decision accords with the sentence the United States Sentencing Com- mission deems appropriate in the mine-run of cases. 551 U.S. ___, 127 S. Ct. 2456, 2465 (2007). Mario Claiborne’s case was mooted by his death, Claiborne v. United States, 551 1 United States v. Carty, 462 F.3d 1066 (9th Cir. 2006) (ordering rehear- ing en banc in United States v. Zavala, 443 F.3d 1165 (9th Cir. 2006), and United States v. Carty, 453 F.3d 1214 (9th Cir. 2006)). Carty and Zavala are consolidated for purposes of rehearing en banc. 2838 UNITED STATES v. CARTY U.S. ___, 127 S. Ct. 2245 (2007) (per curiam), so the Court granted certiorari in Gall v. United States to address the ques- tion whether a sentence that amounts to a substantial variance from the Guidelines needs to be justified by extraordinary cir- cumstances. 127 S. Ct. 2933 (2007). It held on December 10, 2007 that appellate courts must review all sentences, within and without the Guidelines range, under a deferential abuse- of-discretion standard. Gall, ___ U.S. ___, 128 S. Ct. 586, 591 (2007). On the same day, the Court held that, under Booker, the cocaine Guidelines, like all others, are advisory only and that the Guidelines, formerly mandatory, serve as one factor among several that district courts must consider in determining an appropriate sentence. Kimbrough v. United States, ___ U.S. ___, 128 S. Ct. 558, 564 (2007).
Core principles having now been resolved by the Supreme Court, we are left with one open question presented by Carty and Zavala: whether to adopt an appellate “presumption” of reasonableness for sentences imposed within the Guidelines range. We decline to do so, although we recognize that a cor- rectly calculated Guidelines sentence will normally not be found unreasonable on appeal. Applying Rita, Gall and Kim- brough, we conclude that there was no significant procedural error in either Carty or Zavala, and that the sentences imposed were not unreasonable. Accordingly, we affirm in each case.2
I
Zavala’s appeal turns on whether the district court improp- erly presumed the reasonableness of a sentence within the 2 Carty also challenges his conviction, which we affirm for reasons stated in Parts I and II of the panel opinion, and the wording of the verdict form, as to which we see no abuse of discretion and affirm for reasons stated in Part III. Carty, 453 F.3d at 1217-18, vacated, 462 F.3d 1066 (9th Cir. 2006). UNITED STATES v. CARTY 2839 Guidelines range. Carty’s turns on whether the district court adequately articulated reasons for its choice of sentence.3
Zavala. Juan Antonio Zavala was convicted of one count of conspiring to distribute methamphetamine, cocaine, and ecstacy and one count of distribution of methamphetamine. His sentencing took place after Booker, but before Rita, Gall and Kimbrough. After making various adjustments which Zavala does not dispute, the district court determined that his adjusted offense level was 43 and his criminal history cate- gory was III. This yielded a life sentence as the applicable range under the November 2004 version of the Sentencing Guidelines.
At the outset of the hearing, the court indicated that it was required to consider the advisory Guidelines range, but in the context of the goals and purposes of sentencing as reflected in 18 U.S.C. § 3553(a).4 The judge commented that “the 3 After ordering both cases to be reheard en banc, we asked for supple- mental briefing on a broader set of issues. The parties complied, and their input is appreciated. In addition, amicus curiae briefs in support of Carty and Zavala were filed by Federal Public Defenders for the District of Alaska; Central, Eastern and Northern Districts of California; District of Hawaii; District of Nevada; District of Oregon; and the Western District of Washington; by the Federal Defenders of Eastern Washington and Idaho; by the Federal Defenders of Montana, Inc.; by the Federal Defend- ers of San Diego, Inc.; by the National Association of Criminal Defense Lawyers; by Douglas A. Berman; and by Houman Moghaddam. 4 Section 3553(a) provides, in pertinent part: The court shall impose a sentence sufficient, but not greater than neces- sary, to comply with the purposes set forth in paragraph (2) of this subsec- tion. The court, in determining the particular sentence to be imposed, shall consider— (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed — (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; 2840 UNITED STATES v. CARTY Guideline range becomes a presumptive sentence, and it is then for the Court to determine whether or not a specific fac- tor exists in this case under those factors set forth in 3553(a)
(B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defen- dant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treat- ment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for — (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines — (i) issued by the Sentencing Commission pursuant to sec- tion 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Con- gress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and (ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced . . . ; (5) any pertinent policy statement — (A) issued by the Sentencing Commission pursuant to sec- tion 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Con- gress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amend- ments issued under section 994(p) of title 28); and (B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced. (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. UNITED STATES v. CARTY 2841 which would justify the Court in imposing a lesser sentence than that set forth in the Guideline range.” The judge also stated that he needed to justify any departure from the Guide- lines range by reference to the sentencing factors set forth in § 3553(a), and looked to the defense to “at least explain to [him] what those justifications are and what those factors are” that would warrant a sentence less than life imprisonment. Recognizing that he had to “impose a sentence sufficient, but not greater than, necessary to comply with the purposes set forth in [§ 3553(a)(2)],” the judge elicited, and heard, the par- ties’ view as to “why would a sentence of, say, 360 months not be sufficient?”
When Zavala took issue with the statement that the pre- sumptive sentence was the Guidelines range (a life sentence), arguing that the presumptive sentence should instead be the bottom of the statutory range (a ten-year sentence) pursuant to § 3553(a), the judge indicated that he believed the Guide- lines should serve as “the starting point.” He explained that “we start with the Guideline range and then work from that to determine whether there are facts in this case unique to this case which justify the Court in disregarding the Guideline range, or at least deviating from the Guideline range in some fashion” in terms of § 3553(a) and all the factors listed.
The court reviewed the relevant § 3553(a) factors and found that a life sentence was “not necessary” to promote respect for law, to deter others, or to protect the public; was “simply excessive”; and would be disproportional to sen- tences received by Zavala’s co-defendants. Correspondingly, the court found that a 360-month sentence would reflect that this is a serious matter, would promote respect for the law and provide just punishment, and would afford adequate deter- rence to others. Accordingly, the judge “exercise[d] [his] dis- cretion to depart from the Guidelines or to deviate from the Guidelines based upon [his] consideration of the factors set forth in 18 U.S. Code Section 3553(a)” by imposing a term of 360 months imprisonment. 2842 UNITED STATES v. CARTY Carty. A jury convicted Alphonso Kinzar Carty on seven counts of abusive sexual contact and aggravated sexual abuse of his minor niece. He confessed to having molested her on four different occasions when she was between 14- and 16- years old, but later backtracked. The Presentence Report (PSR) considered the offense conduct, Carty’s criminal his- tory, and offender characteristics before recommending a sen- tence at the top of the 235-293 months Guidelines range. It also advised that there “is no information concerning the offense or the offender which would warrant a departure from the sentencing guidelines.”
Carty’s sentencing memorandum argued generally for a lower sentence in consideration of the § 3553(a) factors. It stressed his history and characteristics (Carty was a breadwin- ner for his family with no criminal history; he stopped drink- ing as a young man; he had a strong family relationship; and he had an underprivileged upbringing and diminished capac- ity to understand fully the world around him); the need for the sentence imposed (his parents would likely not be alive when he got out of prison; his young boys would be left without his guidance and support; and the goals of deterrence and protect- ing the public would be served by a much shorter sentence); and the availability of alternative sentences (a lengthy period of supervised release). The government’s memorandum acknowledged that the Guidelines were advisory, but argued that the Guidelines sentence outlined in the PSR was appro- priate in light of the factors set forth in § 3553(a). It also pos- ited that neither Carty’s conduct nor his circumstances differed from the multitude of other sex offenders that the Sentencing Commission took into consideration in promulgat- ing the Guidelines.
At the sentencing hearing, the court indicated that it had reviewed the PSR and the parties’ sentencing memoranda. Seven members of Carty’s family testified. Counsel submitted that Carty has “no criminal history to speak of,” “he is hard working, and he is a good role model for his children”; and UNITED STATES v. CARTY 2843 urged that alternative sentences such as sex offender registra- tion and a lifetime of supervised release would be sufficient to protect the public and keep Carty from reoffending. Coun- sel asked the court to impose “something sufficient but not greater than necessary,” arguing that the sentence recom- mended by the PSR was much greater than necessary as it would be equivalent to having committed second degree mur- der. In imposing sentence, the judge recognized that Carty had strong family support and that the matter was “a familial tragedy of enormous proportion.” He then sentenced Carty to a term of 235 months, the bottom of the Guidelines range.
II
[1] The basic framework is now settled for the district courts’ task, and ours on appeal, under the Booker remedial regime in which the Guidelines are no longer mandatory but are only advisory. Rita, Gall, and Kimbrough supersede how we, and the courts in this circuit, have approached the sen- tencing process in the past.5 Thus, in light of what Rita, Gall, and Kimbrough have to say:
• The overarching statutory charge for a district court is to “impose a sentence sufficient, but not greater than necessary” to reflect the seriousness of the offense, promote respect for the law, and provide just punishment; to afford adequate deterrence; to protect the public; and to provide the defendant with needed educational or voca- tional training, medical care, or other correctional treatment. 18 U.S.C. § 3553(a) and (a)(2).
• All sentencing proceedings are to begin by deter- mining the applicable Guidelines range. The range must be calculated correctly. In this sense, 5 Prior cases are overruled to the extent they are inconsistent with Rita, Gall, Kimbrough, or this opinion. 2844 UNITED STATES v. CARTY the Guidelines are “the ‘starting point and the ini- tial benchmark,’ ” Kimbrough, 128 S. Ct. at 574 (quoting Gall, 128 S. Ct. at 596), and are to be kept in mind throughout the process, Gall, 128 S. Ct. at 596-97 n.6.
• The parties must be given a chance to argue for a sentence they believe is appropriate.6
• The district court should then consider the § 3553(a) factors to decide if they support the sentence suggested by the parties, i.e., it should consider the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed; the kinds of sentences available; the kinds of sen- tence and the sentencing range established in the Guidelines; any pertinent policy statement issued by the Sentencing Commission; the need to avoid unwarranted sentence disparities among defen- dants with similar records who have been found guilty of similar conduct; and the need to provide restitution to any victims. 18 U.S.C. § 3553(a)(1)-(7); Gall, 128 S. Ct. at 596-97 n.6.
• The district court may not presume that the Guidelines range is reasonable. Rita, 127 S. Ct. at 2465 (citing Booker, 543 U.S. at 259-60); Gall, 128 S. Ct. at 596-97. Nor should the Guidelines factor be given more or less weight than any other. While the Guidelines are to be respectfully 6 Rita suggests the parties could argue that the Guidelines sentence should not apply “perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the ‘heartland’ to which the Commission intends individual Guidelines to apply, USSG § 5K2.0, perhaps because the Guidelines sentence itself fails properly to reflect § 3553(a) consider- ations, or perhaps because the case warrants a different sentence regard- less.” 127 S. Ct. at 2465. UNITED STATES v. CARTY 2845 considered, they are one factor among the § 3553(a) factors that are to be taken into account in arriving at an appropriate sentence. Kim- brough, 128 S. Ct. at 570; Gall, 128 S. Ct. at 594, 596-97, 602.
• The district court must make an individualized determination based on the facts. However, the district judge is not obliged to raise every possi- bly relevant issue sua sponte. Gall, 128 S. Ct. at 597, 599.
• If a district judge “decides that an outside- Guidelines sentence is warranted, he must con- sider the extent of the deviation and ensure that the justification is sufficiently compelling to sup- port the degree of the variance.” Id. at 597. This does not mean that the district court’s discretion is constrained by distance alone. Rather, the extent of the difference is simply a relevant con- sideration. At the same time, as the Court put it, “[w]e find it uncontroversial that a major depar- ture should be supported by a more significant justification than a minor one.” Id. This conclu- sion finds natural support in the structure of § 3553(a), for the greater the variance, the more persuasive the justification will likely be because other values reflected in § 3553(a) — such as, for example, unwarranted disparity — may figure more heavily in the balance.
• Once the sentence is selected, the district court must explain it sufficiently to permit meaningful appellate review. A statement of reasons is required by statute, § 3553(c), and furthers the proper administration of justice. See Rita, 127 S. Ct. at 2468 (stating that “[c]onfidence in a judge’s use of reason underlies the public’s trust 2846 UNITED STATES v. CARTY in the judicial institution”). An explanation com- municates that the parties’ arguments have been heard, and that a reasoned decision has been made. It is most helpful for this to come from the bench, but adequate explanation in some cases may also be inferred from the PSR or the record as a whole.
What constitutes a sufficient explanation will necessarily vary depending upon the complexity of the particular case, whether the sentence cho- sen is inside or outside the Guidelines, and the strength and seriousness of the proffered reasons for imposing a sentence that differs from the Guidelines range. A within-Guidelines sentence ordinarily needs little explanation unless a party has requested a specific departure, argued that a different sentence is otherwise warranted, or challenged the Guidelines calculation itself as contrary to § 3553(a). This is because both the Commission and the sentencing judge have deter- mined that the sentence comports with the § 3553(a) factors and is appropriate in the ordi- nary case.7 But the judge must explain why he imposes a sentence outside the Guidelines. Rita, 127 S. Ct. at 2468; Gall, 128 S. Ct. at 594 (indi- cating that a district judge “must explain his con- clusion that an unusually lenient or an unusually 7 Rita, 127 S. Ct. at 2464-65 (explaining that an “individual judge who imposes a sentence within the range recommended by the Guidelines thus makes a decision that is fully consistent with the Commission’s judgment in general”); id. at 2467-68 (noting that “where judge and Commission both determine that the Guidelines sentence[ ] is an appropriate sentence for the case at hand, that sentence likely reflects the § 3553(a) factors (including its ‘not greater than necessary’ requirement)”); Gall, 128 S. Ct. at 594; cf. Kimbrough, 128 S. Ct. at 575 (contrasting a Guideline tied to a statutory mandatory minimum sentence that is not based on empirical evidence and which does not “exemplify the Commission’s exercise of its characteristic institutional role”). UNITED STATES v. CARTY 2847 harsh sentence is appropriate in a particular case with sufficient justifications”).
The district court need not tick off each of the § 3553(a) factors (to show that it has considered them. We assume that district judges know the law and understand their obligation to consider all of the § 3553(a) factors, not just the Guide- lines. See Walton v. Arizona, 497 U.S. 639, 653 (1990) (“Trial judges are presumed to know the law and to apply it in making their decisions.”), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 609 (2002). Nor need the district court articulate in a vacuum how each § 3553(a) factor influences its determination of an appropri- ate sentence. However, when a party raises a spe- cific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence, then the judge should nor- mally explain why he accepts or rejects the party’s position. Rita, 127 S. Ct. at 2468.
• Appellate review is to determine whether the sen- tence is reasonable; only a procedurally errone- ous or substantively unreasonable sentence will be set aside. See id. at 2459 (citing Booker, 543 U.S. at 261-63); Gall, 128 S. Ct. at 594 (empha- sizing that “appellate review of sentencing deci- sions is limited to determining whether they are ‘reasonable’ ”).
• The abuse of discretion standard applies to all sentencing decisions, whether the sentence is inside the Guidelines range or outside of it. Gall, 128 S. Ct. at 596-97.8 8 Kimbrough indicates that in light of the sentencing judge’s greater familiarity with the individual case and individual defendant, “a district 2848 UNITED STATES v. CARTY • On appeal, we first consider whether the district court committed significant procedural error, then we consider the substantive reasonableness of the sentence. Id. at 597.
• It would be procedural error for a district court to fail to calculate — or to calculate incorrectly — the Guidelines range; to treat the Guidelines as mandatory instead of advisory; to fail to consider the § 3553(a) factors; to choose a sentence based on clearly erroneous facts; or to fail adequately to explain the sentence selected, including any devi- ation from the Guidelines range. Id.
• In determining substantive reasonableness, we are to consider the totality of the circumstances, including the degree of variance for a sentence imposed outside the Guidelines range. Id. A court of appeals may not presume that a non- Guidelines sentence is unreasonable. Although a court may presume on appeal that a sentence within the Guidelines range is reasonable, id., we decline to adopt such a presumption in this cir- cuit.
• For a non-Guidelines sentence, we are to “give due deference to the district court’s decision that
court’s decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case ‘outside the “heartland” to which the Commission intends individual Guidelines to apply.’ On the other hand, while the Guidelines are no longer binding, closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range ‘fails properly to reflect § 3553(a) considerations’ even in a mine-run case.” 128 S. Ct. at 574-75 (internal citation to Rita omitted). The Court found it unnecessary to wrestle with this matter because the crack cocaine Guidelines at issue there were based on statutorily mandated minima instead of on the Commission’s judgment of a sentence that achieves the objectives of § 3553(a). Id. UNITED STATES v. CARTY 2849 the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. at 597; see also id. at 602.
• We may not reverse just because we think a dif- ferent sentence is appropriate. Id. at 597.
[2] As Rita observes, a number of circuits use a presump- tion of reasonableness for within-Guidelines sentences,9 while others do not.10 See 127 S. Ct. at 2462. The difference appears more linguistic than practical: Those circuits that have not adopted a presumption of reasonableness have nevertheless concluded “that in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances.” Fernandez, 443 F.3d at 27; see also Talley, 431 F.3d at 787-88. Until now, we have expressed no view on the issue. However, we decline to embrace a presumption. We recognize that a Guidelines sentence “will usually be reason- able,” Rita, 127 S. Ct. at 2465, and this done, we see no par- ticular need for an appellate presumption that says so. A “presumption” carries baggage as an evidentiary concept that we prefer not to import. An appellate presumption, in any event, does little work; even in jurisdictions where reason- ableness is presumed, the presumption is not binding, it does not shift the burden of persuasion or proof, and it lacks “inde- pendent legal effect.” Id. at 2463, 2465. Accordingly, we shall simply abide by the Supreme Court’s admonition that “when 9 United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); United States v. Wil- liams, 436 F.3d 706, 708 (6th Cir. 2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); United States v. Lincoln, 413 F.3d 716, 717-18 (8th Cir. 2005); United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006); United States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006). 10 United States v. Jimenez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006) (en banc); United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006); United States v. Cooper, 437 F.3d 324, 331 (3d Cir. 2006); United States v. Tal- ley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam). 2850 UNITED STATES v. CARTY the judge’s discretionary decision accords with the Commis- sion’s view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reason- able.” Id. at 2465.
III
[3] Zavala contends that the district court erred by applying the Guidelines in a presumptive fashion. Although the judge at first used the phrase “presumptive sentence” when describ- ing his view of the role of the Guidelines after Booker, he clarified that by that he meant the Guidelines should serve as “the starting point” from which the court should then make an individual assessment of the facts unique to Zavala’s case which justify departure or deviation from the Guidelines range in terms of § 3553(a). The judge also acknowledged his obligation to “impose a sentence sufficient, but not greater than, necessary to comply with the purposes set forth in [§ 3553(a)(2)] and the traditional goals of sentencing.”
[4] It would have been error had the judge actually attached a presumption of reasonableness to the Guidelines range or weighted the Guidelines range more heavily than other § 3553(a) factors. As Rita and Gall make clear, the district judge may not presume that the Guidelines range is reason- able. Gall, 128 S. Ct. at 596; Rita, 127 S. Ct. at 2456. But we take him at his word, that he instead regarded the Guidelines as the “starting point.” The record reflects that this is what he did. Having begun by correctly calculating the Guidelines range, the judge considered the § 3553(a) factors and made an individualized assessment that led him to find that a life sen- tence would be excessive and disproportionate to the sen- tences received by Zavala’s co-defendants, and that a 360- month sentence (rather than the life sentence prescribed by the Guidelines) was sufficient to promote respect for the law, provide adequate deterrence, and protect the public.
[5] To the extent the sentencing judge’s initial characteriza- tion was inopportune, we cannot say that it was significant UNITED STATES v. CARTY 2851 procedural error because the court corrected itself. In actual- ity, the judge treated the Guidelines range as a baseline, and moved from there to tailor a sentence to the individualized offense and offender characteristics of Zavala’s case in con- sideration of the § 3553(a) factors. See Kimbrough, 128 S. Ct. at 575 (noting that the district court could not have abused its discretion in reducing the sentence by 4.5 years when it began by properly calculating and considering the advisory Guide- lines range, next addressed the relevant § 3553(a) factors, then arrived at a sentence that it reasoned was sufficient, but not greater than necessary, to accomplish the sentencing goals in § 3553(a)(2)); Gall, 128 S. Ct. at 596-97. Given the defer- ence due the sentencing judge’s individualized determination, and in light of all the circumstances in the case, the sentence imposed was reasonable. We affirm the judgment of the dis- trict court.
IV
[6] Carty contends that the district court imposed a proce- durally flawed sentence by failing to provide sufficient rea- sons for selecting a sentence at the bottom of the Guidelines range rather than a lesser sentence. Although the judge gave no explicit reasons for doing so, the arguments were straight- forward and uncomplicated, as they were in Rita. Rita argued for a sentence below the Guidelines range based on his health, fear of retaliation in prison, and military record. The judge lis- tened to Rita’s arguments and “then simply found these cir- cumstances insufficient to warrant a sentence lower than the Guidelines range . . . . He must have believed that there was not much more to say.” Rita, 127 S. Ct. at 2469. The Court upheld the sentence.11 11 It observed: We acknowledge that the judge might have said more. He might have added explicitly that he had heard and considered the evi- dence and argument; that (as no one before him denied) he 2852 UNITED STATES v. CARTY Here, the district judge had presided over Carty’s trial. He reviewed the PSR and the parties’ submissions that discussed applicability of § 3553(a) factors; and he listened to testimony adduced at the sentencing hearing and to argument by both parties. The judge acknowledged Carty’s specially strong family support and the impact that prolonged incarceration would have. Based on all these factors, the judge imposed the sentence. The sentence was within, but at the low end of, the Guidelines range. “[W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will not necessar- ily require lengthy explanation. Circumstances may well make clear that the judge rests his decision upon the Commis- sion’s own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3553(a) and other congressional man- dates) in the typical case, and that the judge has found that the case before him is typical.” Rita, 127 S. Ct. at 2468.
[7] Nothing suggests that this case is different. It was nei- ther complex nor unusual. While Carty argued for a lesser sentence in consideration of his history and characteristics, the need for the sentence imposed, and the alternatives avail- able, his proffered justifications were centered on his sons’ need for his presence as a role model. In light of Carty’s hav- ing sexually abused his minor niece on numerous occasions with his sons nearby, these justifications are not compelling enough to require an explanation for a sentence at the low-end
thought the Commission in the Guidelines had determined a sen- tence that was proper in the minerun of roughly similar perjury cases; and that he found that Rita’s personal circumstances here were simply not different enough to warrant a different sentence. But context and the record make clear that this, or similar, rea- soning, underlies the judge’s conclusion. Where a matter is as conceptually simple as in the case at hand and the record makes clear that the sentencing judge considered the evidence and argu- ments, we do not believe the law requires the judge to write more extensively. Rita, 127 S. Ct. at 2469. UNITED STATES v. CARTY 2853 of the Guidelines range. Given the circumstances, it is hard to imagine what the district judge might usefully have said.
Carty also maintains that, because the district court did not affirmatively state that it considered the § 3553(a) factors, we should assume that it did not and we should assume that it (impermissibly) treated the Guidelines sentence as the pre- sumptively reasonable sentence. This we shall not do. First, “in the ordinary case, the Commission’s recommendation of a sentencing range will ‘reflect a rough approximation of sen- tences that might achieve § 3553(a)’s objectives.’ ” Kim- brough, 128 S. Ct. at 574 (quoting Rita, 127 S. Ct. at 2465). Further, the judge stated that he reviewed the papers; the papers discussed the applicability of § 3553(a) factors; there- fore, we take it that the judge considered the relevant factors. This includes the “not greater than necessary” requirement. Rita, 127 S. Ct. at 2467. Finally, sentencing took place after Booker, and the parties’ memoranda proceeded on the footing that the Guidelines were advisory. The district judge gave no indication that he felt bound by the Guidelines range or bound to treat the Guidelines sentence as presumptively reasonable.
In short, the sentencing judge “set forth enough to satisfy [us] that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita, 127 S. Ct. at 2468. And we see nothing unusual about Carty’s circumstances to compel a lower sen- tence than the low-end of the Guidelines range. Therefore, discerning neither significant procedural error nor a substan- tively unreasonable sentence, we leave Carty’s sentence in place and affirm the judgment.
AFFIRMED. 2854 UNITED STATES v. CARTY KOZINSKI, Chief Judge, with whom KLEINFELD, Circuit Judge, joins, concurring in relevant part:
I join Judge Rymer’s opinion with the understanding that it affirms Carty’s within-Guidelines sentence by invoking a presumption that within-Guidelines sentences are “reason- able.” Despite the opinion’s quixotic claim that it “decline[s] to embrace a presumption [of reasonableness],” maj. op. at 2849, it’s clear that this is precisely what the opinion does. After disposing of Carty’s procedural objections, see id. at 2850-53, the opinion devotes few words to the reasonableness of his sentence; it affirms because “we see nothing unusual about Carty’s circumstances to compel a lower sentence.” Id. at 2853.
When a sentence is within the Guidelines range, we know that “both the sentencing judge and the Sentencing Commis- sion . . . have reached the same conclusion” that the sentence is “proper.” Rita v. United States, 127 S. Ct. 2456, 2463 (2007). We must presume that such a sentence is reasonable, and we can rest on this presumption unless we are shown something “unusual” that “compel[s]” a different conclusion. Maj. op. at 2853. Judge Rymer does this here, so I’m pleased to join.
SILVERMAN, Circuit Judge, concurring:
In Gall v. United States, 128 S.Ct. 586, 597 (2007), the Supreme Court said, “When conducting [appellate review of the reasonableness of a sentence,] the court will, of course, take into account the extent of any variance from the Guide- lines. If the sentence is within the Guidelines range, the appel- late court may, but is not required to, apply a presumption of reasonableness. [citing Rita v. United States, 127 S.Ct. 2456].” UNITED STATES v. CARTY 2855 Despite this very plain statement that appellate courts may exercise case-by-case discretion about whether to apply a pre- sumption of reasonableness when reviewing a Guidelines sen- tence, the majority adopts its own rule — “[W]e decline to adopt such a presumption in this circuit” — not just in this case, but in all cases in this circuit. I fail to see by what right the majority presumes to prohibit the discretionary application of a presumption of reasonableness in all cases, in light of the fact that the Supreme Court has specifically authorized it.
With all due respect, it does not matter that the majority thinks that a presumption of reasonableness on appeal carries too much “baggage,” as they put it. What matters is what the Supreme Court thinks, and the Supreme Court thinks that “the appellate court may, but is not required to, apply a presump- tion of reasonableness.” Gall, 128 S.Ct at 597. (Emphasis added.) Is that not clear enough?
Perhaps the majority reads the language from Gall to invite each circuit to conjure up its own circuit-wide rule, instead of as a mandate for case-by-case appellate discretion. If so, I respectfully submit that this is a fanciful interpretation of the Court’s opinion. The Supreme Court is in the business of resolving circuit splits, not inviting them. Indeed, the Court explicitly stated in Gall that it is concerned with achieving “nationwide consistency” when it comes to federal sentenc- ing. Id. at 596. Furthermore, the language and structure of the Gall opinion itself show that the Supreme Court was provid- ing a step-by-step approach to how a given sentence is to be reviewed on appeal: First, applying an abuse of discretion standard, the appellate court must ensure that no significant procedural error occurred, such as a miscalculation of the Guidelines. Id. at 597. Next, the court is to consider the sub- stantive reasonableness of the sentence. In doing so, the court is to take into account the totality of the circumstances and the extent of any variance from the Guidelines. Id. Then, the Court said, “[i]f the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a pre- 2856 UNITED STATES v. CARTY sumption of reasonableness.” Id. Finally, if the sentence is outside the Guidelines range, the court may not apply a pre- sumption of unreasonableness. Id.
In context, it is thus apparent that the Court was explaining exactly how an appellate panel should approach the review of any given sentence, and not inviting each circuit to adopt its own circuit-wide policy on the presumption of reasonable- ness.
And the Court’s approach makes perfect sense. In a routine case, involving simple facts and no serious argument against the correctness of the Guidelines sentence, the reviewing court may choose to apply a presumption of reasonableness. On the other hand, in a complex case with unusual facts or many variables, the reviewing court may find that a presump- tion of reasonableness is not appropriate. This, it seems to me, is what the Supreme Court envisioned when it said, “If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reason- ableness.”
Turning to the cases at hand, I would apply the presump- tion of reasonableness to the sentences under review and, finding no abuse of discretion on the part of the district courts, would affirm.