FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-30045

Plaintiff-Appellee, D.C. No.

v. CR-04-00013-3-

SEH CHRISTOPHER RAY PLOUFFE,

Defendant-Appellant.  ORDER

AMENDING

OPINION AND

AMENDED

OPINION 

Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Submitted December 9, 2005*

Seattle, Washington

Filed January 18, 2006

Amended April 21, 2006

Before: Ronald M. Gould, Marsha S. Berzon, Circuit Judges,

and William W Schwarzer,** District Judge.

Opinion by Judge Gould

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation. 

4495
COUNSEL

Jeremy S. Yellin, Havre, Montana, for defendant-appellant

Christopher Ray Plouffe. 

Joseph E. Thaggard, Assistant United States Attorney, Great

Falls, Montana, for plaintiff-appellee United States of America.

ORDER

The opinion filed on January 18, 2006, and published at

436 F.3d 1062, is AMENDED as follows. 

The first paragraph of the opinion states: 

Christopher Ray Plouffe appeals his 71-month sentence imposed after his guilty-plea conviction on one

UNITED STATES v. PLOUFFE 4497
count of assault resulting in serious bodily harm in

violation of 18 U.S.C. §§ 113(a)(6) and 1153. We

have jurisdiction pursuant to 28 U.S.C. § 1291, and

we affirm. 

The following language is added after this first paragraph:

“I

Although neither party raised the issue of our

jurisdiction to consider Plouffe’s sentencing challenge after United States v. Booker, 543 U.S. 220

(2005), we requested supplemental briefing from the

parties on the issue and now address it sua sponte.

Before Booker was decided, the Ninth Circuit had

held that we do not have jurisdiction to review a

challenge to a sentence if the sentence was within

the Sentencing Guidelines range. See, e.g., United

States v. Reed, 914 F.2d 1288, 1290 (9th Cir. 1990);

United States v. Pelayo-Bautista, 907 F.2d 99, 101

(9th Cir. 1990). Ordinarily, panels cannot overrule a

circuit precedent; that power is reserved to the circuit

court sitting en banc. See, e.g., United States v.

Hayes, 231 F.3d 1132, 1139-40 (9th Cir. 2000);

United States v. Washington, 872 F.2d 874, 880 (9th

Cir. 1989). As an exception to this general rule, we

have held that where an intervening higher authority

has issued an opinion that is “clearly irreconcilable”

with our prior circuit precedent, a panel is free to act

disregarding that precedent. See Miller v. Gammie,

335 F.3d 889, 893, 900 (9th Cir. 2003) (en banc). 

Here, the clear and unambiguous language of the

Supreme Court in Booker has established that district

courts must now view the Guidelines as advisory,

and sentence with discretion to go outside the Guidelines range, while considering the purposes of sentencing under 18 U.S.C. § 3553(a). Booker, 543 U.S.

4498 UNITED STATES v. PLOUFFE
at 245-46 (holding that after excising 18 U.S.C.

§§ 3553(b)(1) and 3742(e), the Federal Sentencing

Act “requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well”

(internal citation omitted)). Booker also states that

“the Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial

judge sentences within or outside the Guidelines

range in the exercise of his discretionary power

under § 3553(a)).” Id. at 260 (emphasis added) (citing 18 U.S.C. § 3742(a)-(b)). 

The Supreme Court’s holding and reasoning in

Booker is “clearly irreconcilable” with our prior line

of precedent that disclaimed jurisdiction over a challenge to a sentence within the Guidelines range. Our

prior precedent restricting jurisdiction made sense

when the Guidelines were considered mandatory,

with only a limited scope of permissible departure.

See Koon v. United States, 518 U.S. 81 (1996). However, it would not make sense to so restrict jurisdiction on appeal now that the Guidelines must be

viewed, per the Supreme Court’s Booker holding, as

merely advisory, with sentencing courts exercising

discretion within and beyond Guidelines ranges,

guided by the statutory purposes of sentencing. See

Booker, 543 U.S. at 245-46, 264-65; 18 U.S.C.

§ 3553(a). Stated another way, Booker requires that

appellate courts review the reasonableness of all sentences, which is informed by the Guidelines calculation as well as by the other factors set forth in

§ 3553(a). If our review were eliminated for sentences within the Guidelines range, there would be

no review of the other factors for such sentences, and

we would thus contravene Booker’s mandate regarding appellate review. 

UNITED STATES v. PLOUFFE 4499
Our conclusion that we have jurisdiction to consider appeals of sentences within the Guidelines

range is supported by 18 U.S.C. § 3742(a)(1), which

provides that a defendant may appeal a sentence if

the sentence “was imposed in violation of law.”

Booker does not establish that a sentence within the

Guidelines range is per se reasonable, and therefore

lawful. Rather, the reasonableness of a sentence is

informed by all of the § 3553(a) factors, including

the Guidelines range. See Booker, 543 U.S. at 245-

46, 264-65. A sentence that is within the Guidelines

range therefore may be unreasonable and thus

imposed in violation of law pursuant to § 3742(a)(1).

This conclusion is in accord with our sister circuits.

See United States v. Fernandez, ___ F.3d ___, No.

05-1596, 2006 WL 851670, at *5 (2d Cir. Apr. 3,

2006) (holding that the court has authority to review

Guidelines sentences for reasonableness pursuant to

§ 3742(a)(1)); United States v. Cooper, 437 F.3d

324, 327-28 (3d Cir. 2006) (“We believe an unreasonable sentence is ‘imposed in violation of law’

under 18 U.S.C. § 3742(a)(1).”), amended by ___

F.3d ___, No. 05-1447, 2006 WL 851781 (3d Cir.

Apr. 4, 2006); United States v. Mickelson, 433 F.3d

1050, 1056 (8th Cir. 2006) (stating that, in light of

Booker, appellate review of within-Guidelines sentences “fits within what Congress would have

intended” in § 3742(a) (internal quotation marks

omitted)); United States v. Frokjer, 415 F.3d 865,

875 n.3 (8th Cir. 2005) (“After Booker, . . . we will

review a defendant’s argument that even a sentence

within the advisory guideline range is ‘unreasonable’

with regard to the factors set forth in 18 U.S.C.

§ 3553(a), and an unreasonable sentence would be

imposed ‘in violation of law’ within the meaning of

§ 3742(a).” (internal citation omitted)); United States

v. Martinez, 434 F.3d 1318, 1322 (11th Cir. 2006)

(per curiam) (“[A] post-Booker appeal based on the

4500 UNITED STATES v. PLOUFFE
‘unreasonableness’ of a sentence, whether within or

outside the advisory guidelines range, is an appeal

asserting that the sentence was imposed in violation

of law pursuant to § 3742(a)(1).”); see also United

States v. Jiménez-Beltre, 440 F.3d 514, 517 (1st Cir.

2006) (en banc) (“A majority of Justices said explicitly in Booker that sentences would be reviewable for

reasonableness whether they fell within or without

the guidelines, and for us that is the end of the matter.” (footnote omitted)).1

Accordingly, we hold that we need not follow the

prior precedents that constrained our jurisdiction to

review an appeal of a sentence in the Guidelines

range because these precedents have been effectively

overruled by the intervening and higher authority of

the United States Supreme Court in Booker, and so

we are free to disregard the now superseded precedents. Miller, 335 F.3d at 893, 900. 

II”

No subsequent petitions for rehearing or for rehearing en

banc may be filed by the parties. 

IT IS SO ORDERED.

1At the time the parties filed their supplemental letter briefs, the decisions cited above of the First, Third, Eighth, and Eleventh Circuits had

been rendered. The government in its letter brief failed to bring to our

attention this relevant extra-circuit authority, interpreting the issue of jurisdiction after Booker to review within-Guidelines sentences. When we seek

supplemental briefing on a novel issue involving interpretation of a

Supreme Court precedent, on which our circuit has not ruled, we expect

the parties, including the government, to bring to our attention all relevant

extra-circuit precedent. 

UNITED STATES v. PLOUFFE 4501
OPINION

GOULD, Circuit Judge: 

Christopher Ray Plouffe appeals his 71-month sentence

imposed after his guilty-plea conviction on one count of

assault resulting in serious bodily harm in violation of 18

U.S.C. §§ 113 (a)(6) and 1153. We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm. 

I

Although neither party raised the issue of our jurisdiction

to consider Plouffe’s sentencing challenge after United States

v. Booker, 543 U.S. 220 (2005), we requested supplemental

briefing from the parties on the issue and now address it sua

sponte. Before Booker was decided, the Ninth Circuit had

held that we do not have jurisdiction to review a challenge to

a sentence if the sentence was within the Sentencing Guidelines range. See, e.g., United States v. Reed, 914 F.2d 1288,

1290 (9th Cir. 1990); United States v. Pelayo-Bautista, 907

F.2d 99, 101 (9th Cir. 1990). Ordinarily, panels cannot overrule a circuit precedent; that power is reserved to the circuit

court sitting en banc. See, e.g., United States v. Hayes, 231

F.3d 1132, 1139-40 (9th Cir. 2000); United States v. Washington, 872 F.2d 874, 880 (9th Cir. 1989). As an exception to

this general rule, we have held that where an intervening

higher authority has issued an opinion that is “clearly irreconcilable” with our prior circuit precedent, a panel is free to act

disregarding that precedent. See Miller v. Gammie, 335 F.3d

889, 893, 900 (9th Cir. 2003) (en banc). 

Here, the clear and unambiguous language of the Supreme

Court in Booker has established that district courts must now

view the Guidelines as advisory, and sentence with discretion

to go outside the Guidelines range, while considering the purposes of sentencing under 18 U.S.C. § 3553(a). Booker, 543

U.S. at 245-46 (holding that after excising 18 U.S.C.

4502 UNITED STATES v. PLOUFFE
§§ 3553(b)(1) and 3742(e), the Federal Sentencing Act “requires a sentencing court to consider Guidelines ranges, but

it permits the court to tailor the sentence in light of other statutory concerns as well” (internal citation omitted)). Booker

also states that “the Act continues to provide for appeals from

sentencing decisions (irrespective of whether the trial judge

sentences within or outside the Guidelines range in the exercise of his discretionary power under § 3553(a)).” Id. at 260

(emphasis added) (citing 18 U.S.C. § 3742(a)-(b)). 

The Supreme Court’s holding and reasoning in Booker is

“clearly irreconcilable” with our prior line of precedent that

disclaimed jurisdiction over a challenge to a sentence within

the Guidelines range. Our prior precedent restricting jurisdiction made sense when the Guidelines were considered mandatory, with only a limited scope of permissible departure. See

Koon v. United States, 518 U.S. 81 (1996). However, it would

not make sense to so restrict jurisdiction on appeal now that

the Guidelines must be viewed, per the Supreme Court’s

Booker holding, as merely advisory, with sentencing courts

exercising discretion within and beyond Guidelines ranges,

guided by the statutory purposes of sentencing. See Booker,

543 U.S. at 245-46, 264-65; 18 U.S.C. § 3553(a). Stated

another way, Booker requires that appellate courts review the

reasonableness of all sentences, which is informed by the

Guidelines calculation as well as by the other factors set forth

in § 3553(a). If our review were eliminated for sentences

within the Guidelines range, there would be no review of the

other factors for such sentences, and we would thus contravene Booker’s mandate regarding appellate review. 

Our conclusion that we have jurisdiction to consider

appeals of sentences within the Guidelines range is supported

by 18 U.S.C. § 3742(a)(1), which provides that a defendant

may appeal a sentence if the sentence “was imposed in violation of law.” Booker does not establish that a sentence within

the Guidelines range is per se reasonable, and therefore lawful. Rather, the reasonableness of a sentence is informed by

UNITED STATES v. PLOUFFE 4503
all of the § 3553(a) factors, including the Guidelines range.

See Booker, 543 U.S. at 245-46, 264-65. A sentence that is

within the Guidelines range therefore may be unreasonable

and thus imposed in violation of law pursuant to § 3742(a)(1).

This conclusion is in accord with our sister circuits. See

United States v. Fernandez, ___ F.3d ___, No. 05-1596, 2006

WL 851670, at *5 (2d Cir. Apr. 3, 2006) (holding that the

court has authority to review Guidelines sentences for reasonableness pursuant to § 3742(a)(1)); United States v. Cooper,

437 F.3d 324, 327-28 (3d Cir. 2006) (“We believe an unreasonable sentence is ‘imposed in violation of law’ under 18

U.S.C. § 3742(a)(1).”), amended by ___ F.3d ___, No. 05-

1447, 2006 WL 851781 (3d Cir. Apr. 4, 2006); United States

v. Mickelson, 433 F.3d 1050, 1056 (8th Cir. 2006) (stating

that, in light of Booker, appellate review of within-Guidelines

sentences “fits within what Congress would have intended” in

§ 3742(a) (internal quotation marks omitted)); United States

v. Frokjer, 415 F.3d 865, 875 n.3 (8th Cir. 2005) (“After

Booker, . . . we will review a defendant’s argument that even

a sentence within the advisory guideline range is ‘unreasonable’ with regard to the factors set forth in 18 U.S.C.

§ 3553(a), and an unreasonable sentence would be imposed

‘in violation of law’ within the meaning of § 3742(a).” (internal citation omitted)); United States v. Martinez, 434 F.3d

1318, 1322 (11th Cir. 2006) (per curiam) (“[A] post-Booker

appeal based on the ‘unreasonableness’ of a sentence, whether

within or outside the advisory guidelines range, is an appeal

asserting that the sentence was imposed in violation of law

pursuant to § 3742(a)(1).”); see also United States v. JiménezBeltre, 440 F.3d 514, 517 (1st Cir. 2006) (en banc) (“A

majority of Justices said explicitly in Booker that sentences

would be reviewable for reasonableness whether they fell

within or without the guidelines, and for us that is the end of

the matter.” (footnote omitted)).1

1At the time the parties filed their supplemental letter briefs, the decisions cited above of the First, Third, Eighth, and Eleventh Circuits had

4504 UNITED STATES v. PLOUFFE
[1] Accordingly, we hold that we need not follow the prior

precedents that constrained our jurisdiction to review an

appeal of a sentence in the Guidelines range because these

precedents have been effectively overruled by the intervening

and higher authority of the United States Supreme Court in

Booker, and so we are free to disregard the now superseded

precedents. Miller, 335 F.3d at 893, 900. 

II

[2] We review sentences imposed after the Supreme

Court’s decision in United States v. Booker for “unreasonableness.” 125 S. Ct. 738, 765-66 (2005). In determining

whether a sentence is unreasonable, we are guided by the sentencing factors set forth in 18 U.S.C. § 3553(a), including the

sentencing range established by the Sentencing Guidelines.2

Id. 

[3] The district court considered Plouffe’s history and characteristics, which were described in the presentence report;

Plouffe’s role in the offense; the need to protect the public

while providing appropriate punishment for the offense; and

been rendered. The government in its letter brief failed to bring to our

attention this relevant extra-circuit authority, interpreting the issue of jurisdiction after Booker to review within-Guidelines sentences. When we seek

supplemental briefing on a novel issue involving interpretation of a

Supreme Court precedent, on which our circuit has not ruled, we expect

the parties, including the government, to bring to our attention all relevant

extra-circuit precedent. 

2These factors include: (1) the nature and circumstances of the offense

and the history and characteristics of the defendant; (2) the need for the

sentence imposed; (3) the kinds of sentences available; (4) the kinds of

sentences and the sentencing range established by the Sentencing Guidelines; (5) pertinent policy statements issued by the Sentencing Commission; (6) the need to avoid unwarranted sentencing disparities among

defendants who have similar criminal records and have been found guilty

of similar conduct; and (7) the need to provide restitution to victims. 18

U.S.C. § 3553(a). 

UNITED STATES v. PLOUFFE 4505
the now-advisory Sentencing Guidelines range of 57-71

months. The court then imposed a sentence that was within

the guideline range, albeit at the top of the range. The district

court’s approach was reasoned and it addressed factors specified in § 3553(a). We conclude that Plouffe’s 71-month sentence is reasonable, and we will not disturb the discretion of

the sentencing court. 

[4] That Plouffe’s sentence is nearly twice as long as the

37-month sentence imposed on his co-defendant, Mad Plume,

is not grounds for finding that Plouffe’s sentence is unreasonable, as urged by Plouffe. Rather, this result is consistent with

the directive of Booker that sentencing courts are to consider

how the sentencing factors apply to each defendant and determine whether an individualized sentence is warranted. Id. at

767 (noting that, without its mandatory provision, the Sentencing Reform Act remains consistent with Congress’s intent

to “provide certainty and fairness in meeting the purposes of

sentencing, [while] avoiding unwarranted sentencing disparities . . . [and] maintaining sufficient flexibility to permit individualized sentences when warranted.”) (emphasis added)

(alteration in original) (internal quotation marks omitted).

Because Plouffe’s criminal history was different from that of

his co-defendant, the district court had a reasonable basis

under the advisory Sentencing Guidelines for the difference in

the sentence each received, and this difference does not

require relief for Plouffe. 

AFFIRMED.

4506 UNITED STATES v. PLOUFFE