In re Sealed Case

• Decision Date: 03 June 2008
• Docket Number: No. 07-3132.,07-3132.
• Citation: 527 F.3d 188
• Parties: In re SEALED CASE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

527 F.3d 188

In re SEALED CASE.

No. 07-3132.

United States Court of Appeals, District of Columbia Circuit.

Argued May 9, 2008.

Decided June 3, 2008.

Appeal from the United States District Court for the District of Columbia (No. 99cr00278).

David B. Smith argued the cause for appellants.

Katherine M. Kelly, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, Roy W. McLeese, III and Ann H. Petalas, Assistant U.S. Attorneys.

Before: GINSBURG, BROWN, and KAVANAUGH, Circuit Judges.

Opinion for the court filed by Circuit Judge BROWN.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

BROWN, Circuit Judge:

The defendant appeals his eighteen month prison sentence after revocation of supervised release. We vacate the sentence and remand for the district court to explain its reasoning.

I

Appellant pled guilty in 1999 to two counts of distribution of cocaine base, one count of unlawful use of a "communication facility," see 21 U.S.C. § 843(b), and one count of carrying a firearm during a drug-trafficking offense. Under the terms of his plea agreement, he cooperated extensively with the Bureau of Alcohol, Tobacco, and Firearms (ATF), helping the government to convict an impressive number of drug traffickers. At his eventual sentencing in 2006, the government rewarded his remarkably productive efforts by moving for a downward departure from the Sentencing Guidelines. The district court obliged, sentencing him to time served and five years of supervised release.

After a series of disputes between Appellant and his probation officers, Appellant found himself back before the district court. At bottom, the disputes over supervision arose because Appellant moved out of the District of Columbia but continued to work in this area. His new probation officer might have approved of his occasional trips, but Appellant repeatedly failed to notify his probation officer about his travel plans. In addition, Appellant resisted requests to provide his probation officer with required financial information, proffering only his bank statement when he was asked for detailed accounting. In May 2007, the officer decided to place Appellant on house arrest with electronic monitoring for four months. Appellant refused to accept this sanction; the probation officer responded by transferring the case back to the District of Columbia and filing a Non-Compliance Report. Finally, in August 2007, the District of Columbia probation office asked the sentencing court to revoke Appellant's supervised release because of these violations.

During two days of hearings, Appellant explained his work, his travel, and his financial situation, and his probation officers testified about his failure to communicate with them. An ATF agent also vouched for the quality of Appellant's cooperation. At the conclusion of the hearing, the district judge specifically found Appellant had committed several of the violations charged by the probation office. The judge also said any defendant who came back before him for violating his supervised release faced only one question: "how long he's going to prison for, not whether he's going," Hr'g Tr. 298, Nov. 26-27, 2007. The district judge pointed out he had explained this policy to the defendant at the original sentencing. Further, the judge explained Appellant "cannot be supervised, he would not be supervised, he will not be supervised." Id. Having decided to revoke the release, the district judge told counsel he was "going to consider an upward departure," recognizing the Sentencing Guidelines recommendation was three to nine months in prison but observing he had discretion to sentence Appellant to five years because of his underlying convictions. Id. at 298-99. The probation office requested the full five-year sentence, while the government recommended twelve months; but Appellant's counsel argued for a lenient sentence for violations even the government deemed relatively minor. In the end, the district judge sentenced Appellant to eighteen months' incarceration, giving no further explanation of his reasons.

Appellant challenges this sentence as unreasonable, both substantively (because eighteen months is too much for what he claims were minor violations) and procedurally (because the district judge failed to state reasons for the sentence). Appellant also appeals the decision to revoke his supervised release because he claims the judge applied a uniform policy rather than considering his individual circumstances. We reject that challenge, but we cannot assess whether the eighteen-month sentence is unreasonable in the absence of any explanation. Accordingly, we vacate the sentence and remand the case to the district court.

II

A

Discretion over sentencing lies entirely with district courts, and we may only review a court's decision for abuse of discretion if it is procedurally sound. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597-98, 169 L.Ed.2d 445 (2007); see also United States v. Bolds, 511 F.3d 568, 578 (6th Cir.2007) (applying Gall to a revocation of supervised release). This allocation of responsibility arises from the Sentencing Act, which continues, even after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to restrict our jurisdiction over sentencing appeals to such matters as sentences imposed "in violation of law." 18 U.S.C. § 3742(a)(1); United States v. Dorcely, 454 F.3d 366, 373 (D.C.Cir.2006) (interpreting § 3742(a)(1) to allow review for reasonableness). "Practical considerations also underlie this legal principle." Gall, 128 S.Ct. at 597. "[D]istrict courts have an institutional advantage over appellate courts in making these sorts of determinations," since they see many more sentencing cases. Id. at 598. And a sentencing judge will generally have greater familiarity "with the individual case and the individual defendant before him," due partly to its direct involvement with testimony. Id. at 597.

Given the broad substantive discretion afforded to district courts in sentencing, there are concomitant procedural requirements they must follow. These requirements serve two primary purposes: they develop an adequate record so that appellate courts can perform substantive review, and they guarantee that sentencing judges continue "to consider every convicted person as an individual," Gall, 128 S.Ct. at 598. Both the Sentencing Act and the relevant precedent spell out what a district judge must do. The judge "should begin all sentencing proceedings by correctly calculating the applicable Guidelines range." Id. at 596. Next, after hearing argument from the parties, the judge should consider "all of the § 3553(a) factors to determine whether they support the sentence requested by a party," and "make an individualized assessment based on the facts presented." Gall, 128 S.Ct. at 596-97; see also 18 U.S.C. § 3553(a); § 3583(e)(3) (citing particular § 3553(a) factors as relevant for a decision to revoke supervised release). If the court decides to impose a sentence outside the Guidelines, it "must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance." Gall, 128 S.Ct. at 597. In particular, "a major departure should be supported by a more significant justification than a minor one." Id. Finally, the judge "must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing." Id. The degree of explanation required depends on the circumstances. At a minimum, a sentencing judge must "state in open court the reasons for [his] imposition of the particular sentence." 18 U.S.C. § 3553(c). If the sentence departs from the relevant guideline or policy statement, the reasons "must also be stated with specificity in the written order of judgment and commitment." § 3553(c)(2).

Enforcing these procedural requirements is a major component of abuse of discretion review. See Gall, 128 S.Ct. at 597. Before even considering the substantive aspects of a sentence, we "must first ensure that the district court committed no significant procedural error, such as . . . failing to adequately explain the chosen sentence." Id. Although a district judge need not consider every § 3553(a) factor in every case, and we generally presume the judge "knew and applied the law correctly," United States v. Godines, 433 F.3d 68, 70 (D.C.Cir.2006) (per curiam), certain minimal requirements are indispensable. When a district judge fails to provide a statement of reasons, as § 3553(c) requires, the sentence is imposed in violation of law. See United States v. Perkins, 963 F.2d 1523, 1526-27 (D.C.Cir.1992) (citing 18 U.S.C. § 3742(f)(1)); see also United States v. Williams, 438 F.3d 1272, 1274 (11th Cir.2006) (per curiam) (without a statement, "the sentence is imposed in violation of law" (emphasis in original)). If a sentence falls under § 3553(c)(2), a written statement must accompany the judgment, and it must "at least state why [a] cited factor justified departure" from the guidelines. United States v. Ogbeide, 911 F.2d 793, 795 (D.C.Cir.1990).

B

Appellant did not object to the district judge's failure to explain his reasons either orally or in writing; nor did he object to the district court's application of a one-strike policy for revoking supervised release. We therefore review the sentence for plain error. See United States v. Dozier, 162 F.3d 120, 125-26 (D.C.Cir.1998).

The district judge apparently decided to revoke Appellant's supervised release because that was his standard policy. Such a policy seems inconsistent with a district judge's responsibility to decide each defendant's sentence based on his individual circumstances, considering the factors the Sentencing Act prescribes as relevant. See 18 U.S.C. § 3583(e)(3) (a court may "revoke a term of supervised release" after...