United States v. Smart

Christopher Wayne Smart was convicted of inducing a minor to engage in sexually explicit conduct for the purpose of producing videotapes depicting such conduct in violation of 18 U.S.C. § 2251(a). Exercising its discretion under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Smart’s sentencing court concluded that his United States Sentencing Guidelines (“Guidelines”) range of 168 to 210 months’ imprisonment overstated the seriousness of his offense, and varied downward, imposing a sentence of 120 months’ imprisonment. The government appeals.

*802We review this exercise of district court sentencing discretion under the recent Supreme Court holdings in Gall v. United States, — U.S. —, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, — U.S. —, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), which substantially invalidate the rigorous form of review our circuit announced in United States v. Garcia-Lara, 499 F.3d 1133 (10th Cir.2007). Applying a deferential abuse of discretion standard, we AFFIRM.

I

Smart was indicted, along with his code-fendants Kevin “Tiny” Fields and Robert Rousey, on August 17, 2005, by a grand jury in the Western District of Oklahoma. He was charged with a single count of producing videotapes depicting the sexual abuse of a minor in violation of 18 U.S.C. § 2251(a). All charges in the case stemmed from a March 2001 investigation by officers in the El Reno, Oklahoma, police department of suspected sexual abuse by Rousey of a 13-year-old girl who lived with him intermittently. In November 2000, the defendants had videotaped the girl having sex with the three of them and a woman, Johnita Lynn Wheeler.

Rousey pleaded guilty to two counts under § 2251(a) and was sentenced to the statutory minimum of 120 months’ imprisonment. His Guidelines range was 110 to 137 months, based on a total offense level of 26 and a criminal history category of V. Unlike Rousey, Smart chose to exercise his right to trial. At trial, the victim testified to a jury that Smart, Rousey, and Fields all knew that she was less than 18 years old at the time of the offense. Wheeler testified that she was concerned about engaging in group sex with someone who looked so young, and that she asked Rousey about the victim’s age. She further testified that Rousey told her the girl was 16 and this had been confirmed by Smart. Smart took the stand in his own defense and testified that he had never spoken with either Fields or Rousey about the victim’s age, and that he had not told Wheeler that the victim was 16 years old. Smart was convicted as charged.

At sentencing, the district court accepted the Guidelines calculation in Smart’s presentence report (“PSR”), which determined that Smart’s total adjusted offense level was 31. That offense level reflected a base level of 27, a two-point enhancement due to the age of the victim, see U.S.S.G. § 2G2.1(b)(l), and a further two-point increase for obstruction of justice, see § 3C1.1. Smart’s criminal history category was V. He requested, but did not receive, a two-point reduction for aberrant behavior under § 2K2.20. Accordingly, Smart’s Guidelines range was 168 to 210 months’ imprisonment.

The district court sentenced Smart to 120 months’ imprisonment, a downward variance of 48 months below the bottom of his Guidelines range. After referring to the factors set forth in 18 U.S.C. § 3553(a), the court offered its reasons for granting Smart a downward variance. Initially, the court addressed the difference in culpability between Smart and Rousey, and the nature and seriousness of Smart’s conduct, stating:

I think [Smart’s] conduct ... does fall somewhere between Mr. Fields and Mr. Rousey. It was obvious to me that Mr. Rousey was I guess the lead instigator of this in trying to make some sex films and so forth.

The court communicated a discomfort with imposition of a higher sentence than that of his codefendant based on Smart’s decision to proceed to trial:

I also agree that while you do get the benefit of accepting responsibility and avoiding trial and that in the Guidelines *803... that’s a consideration the court takes, I also agree that you do have a right to go to trial. I guess I would put it this way, that while you get the benefit of your plea agreement if you plead, I don’t necessarily think that you should be punished because you exercised your right to a trial by jury.

Finally, the court elaborated further on its initial point:

I feel it would violate [18 U.S.C. § 3553] ... if you received a far greater sentence than Mr. Rousey. I believe that the disparity would be a violation of that section. And I find, in reviewing the overall case, your involvement as opposed to Mr. Fields’ and Mr. Rousey’s and the others, I do not feel that you should receive a greater sentence than Mr. Rousey. As I stated, he was obviously the instigator and the promoter of this whole event and got others involved, including the under-age girl, and it was his contact with her which created the whole situation. And to avoid any disparity, great unwarranted disparity in the sentences among the defendants based upon their involvement in this episode, and in meeting the other standards, the court finds a reasonable sentence should be that Christopher Wayne Smart is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 120 months.

The district court explained, “I feel that that sentence is reasonable and that it reflects the seriousness of the offense, promotes respect for the law, and provides just punishment. Certainly, that 10-year sentence would afford adequate deterrence to criminal conduct and the public would be protected.” The government argues that the sentence is unreasonable.

II

Since the Supreme Court’s decision in Booker, which relegated the Sentencing Guidelines to an advisory status, district courts have been free to apply any sentence that is “reasonable” under the sentencing factors listed at 18 U.S.C. § 3553(a). See 543 U.S. at 261, 125 S.Ct. 738. Our appellate review for reasonableness includes both a procedural component, encompassing the method by which a sentence was calculated, as well as a substantive component, which relates to the length of the resulting sentence. United States v. Kristi, 437 F.3d 1050, 1055 (10th Cir.2006).

The government does not specify whether it challenges the procedural or substantive component of Smart’s sentence. Rather, it contends generally that the district court’s reliance on two “legally erroneous” sentencing factors rendered Smart’s sentence unreasonable. We conclude that this assertion raises a challenge to both aspects of the reasonableness of Smart’s sentence.

In Gall, the Supreme Court identified “failing to consider the § 3553(a) factors” and “failing to adequately explain the chosen sentence” as forms of procedural error. 128 S.Ct. at 597. Section 3553(a) lists in broad and general terms the factors which district courts must account for during sentencing, and encompasses the vast majority of considerations courts have traditionally treated as relevant in setting sentences. The error asserted here is not a failure to evaluate these factors, but rather, a related error: consideration by the district court of legally erroneous factors.

We agree that if a district court bases a sentence on a factor not within the categories set forth in § 3553(a), this would indeed be one form of procedural error. Section 3553(a) mandates consideration of its enumerated factors, and implic*804itly forbids consideration of factors outside its scope. § 3553(a) (“The court, in determining the particular sentence to be imposed, shall consider [the listed factors].”); see also United States v. Roberson, 517 F.3d 990, 994, 2008 WL 323223, at *1 (8th Cir. Feb.7, 2008) (procedural sentencing error includes “giving significant weight to an irrelevant or improper factor”).1

Because the government also questions whether Smart’s sentence can be supported in the absence of the allegedly “improper” factors it identifies, it has also raised a substantive reasonableness challenge. A challenge to the sufficiency of the § 3553(a) justifications relied on by the district court implicates the substantive reasonableness of the resulting sentence. United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir.2007); see also Gall, 128 S.Ct. at 597 (in conducting substantive reasonableness review, appellate courts must deferentially examine the district court’s determination that “the § 3553(a) factors, on a whole, justify the extent of the variance”).

Ill

As directed by the Supreme Court, we begin by considering the procedural reasonableness of the sentence imposed. Gall, 128 S.Ct. at 597 (appellate courts “must first ensure that the district court committed no significant procedural error”). The government raises two factors that, it contends, were improper under § 3553(a). First, the government argues that under § 3553(a)(6), the district court could not take into account the disparity between Smart’s sentence and that of his codefendant. Section 3553(a)(6) mandates consideration of “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”

After Gall, it is clear that codefendant disparity is not a per se “improper” factor, such that its consideration would constitute procedural error. The Court approvingly noted that the district court below had inquired about the sentences Gall’s codefendants received, and stated that district courts may “consider[] the need to avoid unwarranted similarities among [codefendants] who [are] not similarly situated,” despite falling under the same or similar Guidelines sentencing ranges. 128 S.Ct. at 600. It follows that a district court may also properly account for unwarranted disparities between codefendants who are similarly situated, and that the district court may compare defendants when deciding a sentence.2 We em*805phasize that whether any such disparity justifies a sentencing variance in a given case raises a separate question, one of substantive reasonableness, which we address in Part IV.

Second, the government argues that the district court improperly relied on its view that Smart should not be “punished” for exercising his right to a trial by jury. See United States v. Portillo-Valenzuela, 20 F.3d 393, 395 (10th Cir.1994) (“[Denying the reduction for acceptance of responsibility is not a penalty for exercising any rights. The reduction is simply a reward for those who take full responsibility.”). When read in context, however, it is clear that the court’s statement was not offered as a justification for its ultimate sentencing decision. The court unremarkably noted that while a defendant gets the benefit of acceptance of responsibility if he pleads guilty, the converse is not necessarily true: “I don’t necessarily think that you should be punished because you exercised your right to a trial by jury.” Moreover, the court denied a reduction for acceptance of responsibility, and approved a two-point Guidelines enhancement for obstruction of justice based on Smart’s testimony during trial. These decisions are not indicative of an irrational sympathy for Smart’s decision to proceed to trial. Because the district court plainly did not rely on Smart’s decision to go to trial as a justification for its downward variance, we need not decide whether such a consideration would constitute procedural error after Gall.

We conclude that the district court relied on no improper factors in sentencing Smart,3 and proceed to consider the substantive reasonableness of the sentence it ultimately imposed.

IV

A

Following the Supreme Court’s decision in Rita v. United States, — U.S. —, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), it has been well settled that we review a district court’s sentencing decisions solely for abuse of discretion. See id. at 2465 (“[A]ppellate ‘reasonableness’ review merely asks whether the trial court abused its discretion.”). Significantly less settled has been the question of how exactly we should apply abuse of discretion review to individual sentences. The Supreme Court has recently provided considerable guidance in Gall and Kimbrough.4 *806These eases modify the application of our existing substantive reasonableness review and clarify the amount of deference we must afford to a district court’s weighing of § 3553(a) sentencing factors. Briefly stated, we now review “all sentences— whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard.” Gall, 128 S.Ct. at 591.

Following Rita, but before the Supreme Court’s decisions in Gall and Kimbrough, our substantive reasonableness review of outside-Guidelines sentences was governed by United States v. Garcia-Lara. In Garcia-Lara we stated that, since Booker, “we have implicitly acknowledged that we employ an abuse-of-discretion standard,” and held that “Rita says nothing new about the standard of review.” 499 F.3d at 1136; but see id. at 1141-42 (Lucero, J., dissenting).

Under Garcia-Lara, review of a sentencing variance began with mathematical calculation of both the absolute amount and the relative percentage of the variance from a Guidelines baseline. Based on this determination, we required “more compelling reasons” “the farther the trial court diverge[d] from the advisory guideline range.” Id. at 1138-39 (quotation omitted). Second, we conducted our own detailed review of the record to assess the district court’s factual bases for its § 3553(a) conclusions. See id. at 1139-40 (“recounting] Mr. Garcia-Lara’s criminal history in ... detail” and factually concluding that this history “illustrate[d] his demonstrated propensity to break the law”). Third, we considered de novo the weight assigned by the district court to various § 3553(a) sentencing factors, because we considered this weighing process to be a question of law. Id. at 1137, 1141 n. 4 (refusing to “credit” the district court’s “legal conclusion” that “a particular sentence fulfills the sentencing purposes of § 3553(a)”).

Fourth, we permitted a variance only if we agreed that it was “justified by ‘particular characteristics of the defendant’ that [were] ‘sufficiently uncommon’ ” to distinguish him from the ordinary defendant contemplated by the Sentencing Commission during drafting of the Guidelines. Id. at 1141 (quoting United States v. Mateo, 471 F.3d 1162, 1169 (10th Cir.2006)); see also United States v. Hildreth, 485 F.3d 1120, 1129 (10th Cir.2007). Finally, we did not allow a district court to assign different weight to certain § 3553(a) factors than the weight already given to those factors in the Guidelines. If a district court did so, we sometimes characterized such judgment as “ignoring] Congress’s policy” choices or “ignoring] the Guidelines ... and instead adopting] its own sentencing philosophy.” Garcia-Lara, 499 F.3d at 1140, 1141. Each of these five features of our review of non-Guidelines sentences has now been invalidated by the Supreme Court, and accordingly, Garcia-Lara is no longer binding on this panel. See United States v. Torres-Duenas, 461 F.3d 1178, 1183 (10th Cir.2006) (“intervening Supreme Court precedent” allows a panel of our court to overturn another panel’s decision).

The Court has now more clearly defined the term “abuse of discretion.” The details of our review, in practice, must now afford substantial deference to district courts. In assessing the standard of review applied by the Eighth Circuit in Gall, the Court looked past that circuit’s terminology to the practical application of its “abuse of discretion” review, and concluded that the latter belied the former:

The Court of Appeals gave virtually no deference to the District Court’s decision. ... Although the Court of Appeals correctly stated that the appropriate *807standard of review was abuse of discretion, it engaged in an analysis that more closely resembled de novo review of the facts presented and determined that, in its view, the degree of variance was not warranted.

128 S.Ct. at 600.

It is clear that Gall and Kimbrough cannot be reconciled with the five previously identified features of our circuit’s standard of review applicable to non-Guidelines sentences. Following Gall, sentencing review may not be based on “a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” Id. at 595. Although the degree of variance from the Guidelines range remains a consideration on appeal, id., it may not define our threshold standard of review. We may no longer seek a certain mathematical precision by requiring that § 3553(a) factors reach some specific level of evidentiary weight. Id. at 594 (“[T]he Court of Appeals’ rule requiring ‘proportional’ justifications for departures from the Guidelines is not consistent with ... Booker.”); contra Garcia-Lara, 499 F.3d. at 1138-39. To do so would be to “apply[ ] a heightened standard of review to sentences outside the Guidelines range” in practice, no matter how we might describe that standard in theory. Gall, 128 S.Ct. at 596. Moreover, although a district court must provide reasoning sufficient to support the chosen variance, it need not necessarily provide “extraordinary” facts to justify any statutorily permissible sentencing variance, even one as large as the 100% variance in Gall, 128 S.Ct. at 595; contra Mateo, 471 F.3d at 1169-70 (requiring “extraordinary circumstances” to support some variances).

None of this means that the extent of the variance is unimportant. Of course, as the Court noted, in making an “individual assessment,” if the district court

decides that an outside-Guidelines sentence is warranted, [it] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, [it] must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.

Gall, 128 S.Ct. at 597. We further recognize, of course, that “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.” Kimbrough, 128 S.Ct. at 575 (emphasis added).

Our Garcia-Lara practice of relying upon our own reading of the factual record, in place of the district court’s reading, ignores the trial judge’s “superior position to find facts and judge their import under § 3553(a) in the individual case.” Gall, 128 S.Ct. at 597 (quotation omitted). As Gall observes, a sentencing “judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” Id. (quotation omitted). We lack the district courts’ institutional experience of imposing large numbers of sentences, the vast majority of which are never appealed. See id. at 598 n. 7. Thus, our standard of review must comport with this reality by giving both formal and practical deference to the sentencing court’s assessment of the facts under § 3553(a). It is not enough to solely credit raw findings of individual fact.

*808We may not examine the weight a district court assigns to various § 3553(a) factors, and its ultimate assessment of the balance between them, as a legal conclusion to be reviewed de novo. Instead, we must “give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Compare id. at 597, with Garcia-Lara, 499 F.3d at 1137, 1141 n. 4 (refusing to “credit” the district court’s § 3553(a) balancing). An appellate court’s “dis-agreefment] with the District Judge’s conclusion that consideration of the § 3553(a) factors justified ... a marked deviation from the Guidelines range” is simply not enough to support a holding that the district court abused its discretion. Gall, 128 S.Ct. at 602. “[I]t is not for the Court of Appeals to decide de novo whether the justification for a variance is sufficient or the sentence reasonable,” id., and we must therefore defer not only to a district court’s factual findings but also to its determinations of the weight to be afforded to such findings.

Gall and Kimbrough end our practice of permitting a variance only if the district court “first distinguish[es] [the defendant’s] characteristics and history from those of the ordinary ... offender” contemplated by the Guidelines.5 Garcia-Lara, 499 F.3d at 1140 n. 5. As the Court explained in Kimbrough, the Sentencing Commission and sentencing courts play complementary roles in fine-tuning an individual sentence: Although “the Commission’s recommendation of a sentencing range will reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives” and the Guidelines give a district court a measure of national practice to use as a starting point, the district court will have “greater familiarity with the individual case and the individual defendant before him than the Commission.” 128 S.Ct. at 574 (quotation omitted) (citing Rita, 127 S.Ct. at 2465, 2469).6 Allowing sentencing variances only on the existence of extraordinary defendant “characteristics and history” assumes not that the Guidelines give a “rough approximation” of appropriate sentences, but that they dictate the only appropriate sentence in the absence of extraordinary facts.

Our requirement that district courts distinguish an offender from the “ordinary” offender has given the Guidelines more weight than other § 3553(a) factors, and has effectively required every sentencing variance to be justified by “extraordinary facts.” To perform their individualizing role, district courts are now allowed to contextually evaluate each § 3553(a) factor, including those factors the relevant guideline(s) already purport to take into account, even if the facts of the case are less than extraordinary. Compare Gall, *809128 S.Ct. at 596-97, 602, and Kimbrough, 128 S.Ct. at 570 (“In sum, while [§ 3553(a) ] still requires a court to give respectful consideration to the Guidelines, Booker permits the court to tailor the sentence in light of other statutory concerns as well.” (citations omitted)), with Garcia-Lara, 499 F.3d at 1137-38 (“A court’s conclusion that the Guidelines are simply ‘wrong’ or an inadequate reflection of the statutory sentencing purposes is an unreasonable application of [§ 3553(a) factors].”). In many cases, the Guidelines recommendation and the district court’s individualized determination will continue to overlap, but we may not assume that the Guidelines perfectly express the § 3553(a) factors present in an individual case in the face of a district court’s conclusion to the contrary.

We may not conclude that simply by diverging from the Guidelines, a district court has disregarded the policy considerations which led the Commission to create a particular Guideline. Compare Kimbrough, 128 S.Ct. at 564 (stating that “the Court of Appeals erred in holding the crack/powder disparity effectively mandatory”), with Garcia-Lara, 499 F.3d at 1140 (“[T]o the extent the District Court believed the career offender enhancement over-represented Mr. Garcia-Lara’s prior criminal history, it ignored Congress’s policy of targeting recidivist drug offenders for more severe punishment.”). Such a review could lead to excessive deference to the macro-level § 3553(a) determinations reached by the Sentencing Commission, and too little deference to the micro-level determinations reserved for the district courts. If district courts are required to balance the Guidelines against the other § 3553(a) considerations, then we cannot say they disregard the Guidelines simply by striking a different balance and imposing a variance in a particular case.7 See Gall, 128 S.Ct. at 602 (“[T]he Guidelines are only one of the factors to consider when imposing a sentence.”).

In sentencing defendants, district courts exercise a guided discretion within a range specified by Congress. As Justice Cardozo wrote, a “judge ... is to exercise a discretion informed by tradition, metho-dized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life.” Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921) (quotation omitted). Mindful of the statutory limitations of § 3553(a), a sentencing judge’s determination within that framework is an exercise of discretion and must be reviewed as such.

B

In sentencing Smart, the district court began by stating that it “gave great weight to the guidelines” recommendation, which had been properly calculated in Smart’s PSR. In justifying its downward variance from the Guidelines range, the district court relied primarily on Smart’s relatively minor role in the offense. On point:

I feel it would violate [18 U.S.C. § 3553] ... if you received a far greater sentence than Mr. Rousey.... As I stated, he was obviously the instigator and the promoter of this whole event and got others involved, including the under-age *810girl, and it was his contact with her which created the whole situation.

Although noting that Rousey got the “benefit of accepting responsibility and avoiding trial” and Smart rightfully did not, the court also recognized that Rousey had played a much larger role than Smart in the underlying incident, and sentenced Smart to the same 120-month term imposed on Rousey.8 This sentence is equivalent to the statutory minimum under § 2251(a). In setting the sentence, the district court cited the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, § 3553(a)(2)(A), and the need to avoid unwarranted sentencing disparities, § 3553(a)(6).

As discussed above, Gall allows district courts to consider disparities between co-defendants. 128 S.Ct. at 600. The district court considered this factor in conjunction with the seriousness of Smart’s offense, using codefendant Rousey’s conduct largely to illustrate why Smart was less culpable than the Guidelines range would suggest. See United States v. Shaw, 471 F.3d 1136, 1140-41 (10th Cir.2006) (affirming an above-Guidelines sentence where the district court considered a codefendant’s sentence in the course of discussing several § 3553(a) factors, including the defendant’s criminal history and the seriousness of his offense). In effect, the court concluded that Smart’s lesser culpability, offset by his failure to accept responsibility, supported the same term of imprisonment as Rousey’s greater culpability and acceptance of responsibility. Given the district court’s firsthand observation of Smart’s trial, its credibility determinations, and insights not necessarily conveyed by the record, its conclusion was not an abuse of discretion. See Gall, 128 S.Ct. at 597 (recognizing that these “practical considerations” underlie the legal principle that sentencing courts must be reviewed deferentially).

Moreover, the district court’s determination that Smart’s sentence overstated the seriousness of his offense is supported by evidence in the record tending to show that both Smart and Fields were lesser players in the charged offense. For example, the district court heard testimony from the victim that only codefendant Rousey coerced her-through payment and promises of a place to stay — into participating in various sexual acts. These included those captured on the videotape which led to Smart’s conviction. Rousey also initiated the plan to videotape this episode, while Smart was only a follower in the scheme.

Additionally, the district court found that Smart’s sentence was justified by several other § 3553(a) factors. It found that the 10-year sentence would be sufficient to deter future criminal conduct, see § 3553(a)(2)(B), and that it would provide sufficient time for Smart to obtain correctional treatment, see § 3553(a)(2)(D). These § 3553(a)(2) factors are of particular importance, as district courts are bound to “impose a sentence sufficient, but not greater than necessary” to comply with them. § 3553(a); see also Kimbrough, 128 S.Ct. at 570.

Applying the appropriate legal standard of review provided by Gall and Kim-brough, and crediting the district court’s reasoned consideration of these multiple sentencing factors, we fail to perceive any abuse of discretion in sentencing Smart to a below-Guidelines sentence.

*811y

AFFIRMED.