FILED

United States Court of Appeals

Tenth Circuit

February 10, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. No. 07-4118

CHARLES DENNIS FRIEDMAN,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. NO. 2:05-CR-933-JTG)

Elizabethanne C. Stevens, Assistant United States Attorney (Brett L. Tolman,

United States Attorney, with her on the briefs), District of Utah, Salt Lake City,

Utah, for Plaintiff-Appellant.

Jeremy M. Delicino, (Stephen R. McCaughey, on the briefs), Salt Lake City,

Utah, for Defendant-Appellee.

Before KELLY, SEYMOUR, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.
1

Friedman’s general criminal history is extensive, beginning with an

adjudication for burglary at the age of twelve. He has additional juvenile

adjudications for assault with a deadly weapon, escape, burglary, and two counts

of vehicle theft. In addition to his four bank robbery convictions, Friedman has

adult convictions for vehicle theft, conspiracy to escape, assault with a deadly

weapon, making a false claim against the United States government, felon with a

weapon, attempted escape, and damage to a jail. It appears that since the age of

twelve, Friedman has spent the overwhelming majority of his life either as a ward

of the state, in a juvenile detention facility, or in prison.

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I. INTRODUCTION

Charles Friedman pleaded guilty to bank robbery. 18 U.S.C. § 2113(a). 

Varying dramatically from the 151- to 188-month range set out in the advisory

Sentencing Guidelines, the district court sentenced Friedman to fifty-seven

months’ imprisonment. The government appeals, claiming the sentence imposed

by the district court is substantively unreasonable. Exercising jurisdiction

pursuant to 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291, we reverse Friedman’s

sentence and remand the matter to the district court for further proceedings

consistent with this opinion.

II. BACKGROUND

Friedman is a serial bank robber.1

 In May 1986, he robbed a bank in

Arizona. During the Arizona robbery, he used a note indicating he had a gun. In

June 1986, he robbed a bank in Utah while armed with a .45-caliber automatic

pistol. Friedman was convicted of the Utah robbery in August 1986; he was

sentenced to twenty years’ imprisonment. He was convicted of the Arizona
2

Both of these robberies were committed before the effective date of the

Sentencing Reform Act of 1984 (“SRA”), 18 U.S.C. § 3551 et seq. United States

v. Reider, 103 F.3d 99, 101 (10th Cir. 1996) (noting the SRA did not take effect

until November 1, 1987). Accordingly, these sentences were imposed under the

law in effect prior to the existence of the Sentencing Guidelines.

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robbery in February 1987; he was sentenced to three years’ imprisonment, to run

consecutively to the sentence on the Utah robbery conviction. Friedman was

paroled on June 13, 1998.2

Law enforcement officials investigated Friedman as a suspect in three bank

robberies that took place between December 30, 1998, and January 19, 1999. 

During an arrest of Friedman on unrelated charges, officers found “bait bills” that

were taken during the January 19th robbery. Shortly thereafter, he was indicted

on three counts of bank robbery. Friedman pleaded guilty to one count, a 1999

robbery, in exchange for the dismissal of the remaining two charges.

The United States District Court for the District of Utah sentenced

Friedman to seventy-one months’ imprisonment. Pursuant to the terms of the plea

agreement between Friedman and the government, the district court ordered the

sentence to run concurrently with any term of incarceration imposed by the

United States Parole Commission (“USPC”) upon revocation of Friedman’s parole

on his previous convictions. Ultimately, however, the USPC declined to

cooperate with such an approach, refusing to execute on the parole warrant until

Friedman completed his seventy-one-month sentence for the 1999 bank robbery. 

Without such an action on the part of the USPC, the Bureau of Prisons informed
3

The record does not reveal the jurisdictional basis upon which the district

court relied to amend Friedman’s sentence some six years after it was originally

imposed. In any event, it does not appear the government opposed the actions

taken by the district court to, in effect, force the USPC to act so that Friedman

could serve his sentence on the 1999 robbery concurrently with any term imposed

by the USPC upon revocation of Friedman’s parole on the 1986 robberies.

4

It appears from the record that he was, at this time, also on parole from his

1986 and 1987 bank robbery convictions.

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the court it was unable to run Friedman’s sentence concurrently to whatever

sentence the USPC might impose when it executed its parole warrant. In

response, the district court issued two amended orders, modifying Friedman’s

sentence to one day of imprisonment, followed by three years’ supervised

release.3

Friedman was placed on supervised release for the 1999 robbery in June

2005.4

 Five months later, on November 8, 2005, Friedman robbed Chase Bank in

West Valley City, Utah. Friedman was indicted on bank robbery charges in

December of 2005; the Chase Bank case was transferred to the same district court

judge who handled the 1999 robbery conviction and consolidated with

proceedings to revoke Friedman’s supervised release on the 1999 bank robbery

conviction. Friedman thereafter pleaded guilty to robbing Chase Bank.

In advance of the sentencing hearing on the Chase Bank conviction, a

United States probation officer prepared a presentence report (“PSR”). The PSR

first calculated Friedman’s offense level by reference to U.S.S.G. § 2B3.1, the

Guideline provision applicable to robberies. Pursuant to § 2B3.1(a), Friedman’s
5

Friedman qualified as a career offender because he was at least eighteenyears old when he committed the Chase Bank robbery, the Chase Bank robbery

was a crime of violence, and he had at least two prior felony convictions for

crimes of violence (i.e., bank robbery). U.S.S.G. § 4B1.1(a) (setting out elements

of career offender classification under the Guidelines); id. § 4B1.2(a) & app. n.1

(defining crime of violence to include robbery).

6

Because the statutory maximum sentence for a bank robbery conviction is

twenty years, 18 U.S.C. § 2113(a), the career offender guideline sets the offense

level at 32. U.S.S.G. § 4B1.1(b)(C).

7

Every defendant who qualifies as a career offender is assigned a criminal

history category VI. U.S.S.G. § 4B1.1(b).

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base offense level was 20. The PSR adjusted Friedman’s offense level upward

two levels because the money was taken from a financial institution. U.S.S.G.

§ 2B3.1(b)(1). After deducting three levels for acceptance of responsibility, id.

§ 3E1.1, Friedman’s adjusted offense level was 19. This offense level, coupled

with Friedman’s criminal history category V, resulted in a sentencing range of

fifty-seven to seventy-one months’ imprisonment. Id. ch. 5 pt. A.

Pursuant to the terms of § 4B1.1, the PSR also calculated Friedman’s

advisory sentencing range under the career offender provisions of the Guidelines.5

Under the career offender guideline, Friedman’s offense level was 326

 and his

criminal history category was VI.7

 After a three-level reduction to his offense

level for acceptance of responsibility, Friedman’s offense level of 29 and criminal

history category VI resulted in a sentencing range of 151 to 188 months. Id.

Because this range was “greater than the offense level otherwise applicable”

under § 2B3.1, it became Friedman’s correctly calculated advisory Guideline
8

The United States argued as follows regarding the question of the

appropriate sentence for Friedman’s bank robbery conviction:

From the United States’ perspective, the purpose of this prosecution

is to ensure that Friedman receives a just sentence for what is hoped

to be the culmination of his criminal career during which he has

repeatedly victimized persons and financial institutions. The United

States respectfully requests that this Court order a term of

imprisonment that fairly reflects the seriousness of the crime,

protects the public, deters the defendant and others like him, and

provides a just punishment. Taking into account Friedman’s history

and characteristics, as well as the nature and circumstances of this

offense, Friedman warrants a stiff “Career Offender” sentence of

imprisonment.

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range. Id. § 4B1.1(b). The PSR concluded by noting there was no information to

suggest that either an upward or a downward departure was warranted in the case

and “[n]o other sentencing factors have been identified by the probation office.”

Friedman filed objections to the PSR. As relevant to the issues on appeal,

he simply objected to the PSR because “there is no consideration given to any

variances from the [G]uidelines based on factors set forth in 18 U.S.C. § 3553.” 

The government filed a written response to Friedman’s objections, specifically

requesting that the district court sentence Friedman within the guideline range of

151 to 188 months.8

 Defense counsel did not file a sentencing memorandum, but

Friedman did submit a lengthy letter to the district court. Friedman explained he

had been in prison for all but twenty months of the previous twenty-seven years

and was institutionalized extensively as a juvenile. Friedman asserted his

“lifetime of prisons and institutions did nothing to prepare [him] for the free
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world,” and explained he thought he robbed the Chase Bank “not for the money or

opportunity, but to escape the pressures of the [foreign] world [he] was in.” 

Friedman stated he was not violent and was not a career criminal. As to his

culpability, Friedman stated as follows: “My point here is that I have done my

share of prison time, considering my crimes, and as I pointed out earlier in this

letter, I’m much like the turtle on the fencepost—I didn’t get into this

predicament all on my own. I think it’s time the ‘system’ took ‘some’

responsibility.” Friedman asked the district court to consider an alternative to

long-term incarceration and stated he would not “abuse any opportunity” the court

gave him.

Friedman’s sentencing hearing took place on March 1, 2007. Defense

counsel made a very brief opening statement, simply requesting a sentence of

seven to eight years based on the § 3553 factors. Defense counsel did not specify

the § 3553 factors to which he was referring, although he did note Friedman did

not use a gun when he robbed the bank. The district court turned its attention to

Friedman’s letter:

Court: And you had been thinking after some further thought

that you really do like to be on the great outside?

Friedman: Yes, sir.

 . . . .

Court: Well, if you don’t want to be in prison, why do you

keep doing that?

Friedman: . . . . I’m definitely here . . . and I’ve admitted my

responsibility to the crime. . . . [B]ut I don’t think I’m here on my
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own and I don’t think that’s been sufficiently addressed either by the

government or basically us as far as my history goes.

. . . . I’ve got an extensive juvenile history that involved like

incorrigible or runaway, things that really weren’t criminal but were

enough to get me into the system at the time at a very young age. 

And it’s never stopped since then.

. . . . I’ll be 45 this year. And my breaks from institutions has

been very brief since like the age of 10. And I think . . . somewhere

along the line, there’s some other responsibility has to be assigned to

the system itself. I’ve gotten no halfway house this last time I was

out. There’s no adjustment period there. I did find, Your Honor, in

the statute while I was in prison, something called a Demonstration

Project or a Demonstration Program that was funded through this

year and was specifically designed for high-risk reoffenders, people

that fit my category, people that have been in prison a long time,

which is real rare to find any kind of program for people like me. I

wrote to counsel at the time . . . . I wrote to my last known probation

officer . . . . I approached the administration at the prison I was at

. . . . Nobody knew anything about it.

. . . . Judge, it’s not a matter of, “Don’t you like it out here?” 

It’s a matter of not knowing how to live out here. And normal

people that are out here don’t understand that, and I tried to explain

to you in my letter as best I could . . . . It’s hard just to come out of

a maximum security penitentiary after years and years and come out

here and be expected just to function normally.

Court: Well, it’s hard to expect a system to be patterned

directly for a person like you. You can be observing whatever

programs are available; they’re not going to create a new program for

people who happen to be in prison almost perpetually. I feel sorry

that you’ve been in prison for so long, but, you know, I didn’t see

anything in your long and well-written letter, eloquent in some parts,

any remorse or any consideration of the victims that you have

affected. You’re worried about your life being affected. What about

being concerned about their lives, about the trauma that you caused

to a young teller who’s thinking still, dreaming about the incident?

. . . .

Friedman: . . . . There is no doubt that the teller in the instant

offense or any teller that is approached by a stranger and gets

demanded to hand over money is probably a shocking experience. 

One of the things that I’ve continued to be dissatisfied in my

particular case is that we’ve never talked to this teller. And from the
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reports, both police reports and from probation, it appears that the

young lady wasn’t overly traumatized. And I was hoping that we

could talk to her to maybe see what her position is. But taking a

bank robbery—this is what I’m saying, Your Honor, I’m not saying

that bank robbery is acceptable or it’s a nontraumatizing experience

for a teller. I know it is. But in this particular case, it wasn’t the

bank robbery we see on TV. I didn’t swear at the lady. I didn’t,

you know what I mean. No rough language. I passed a piece of

paper. It could have been a bogus check, and it could have been

basically the same crime, that’s my only point. If I did traumatize

her, my sincere apologies and that is sincere.

The government requested a sentence within the advisory Guideline range and

noted, based on his history, that Friedman was likely to reoffend upon release.

After listening to Friedman’s and the government’s arguments, the district

court focused on the alterations to Friedman’s sentencing range resulting from the

career criminal provisions of § 4B1.1, stating as follows:

The thing that bothers me is the guideline range is 151 months is the

low end, 94 of those months are given because of the status of the

career offender. Under the nature of the offense and the

characteristics of the individual under the statute, he might not be

regarded as a career offender and would be given a sentence of 57

months. Isn’t that enough for this particular offense?

When the government responded by arguing that the result of such a short

sentence would be the victimization of additional individuals, the district court

responded as follows:

Well, I don’t believe it, but I didn’t believe it the last time this came

up and he proved me wrong. As a matter of fact, it was—how long?

A matter of months, not years, after I had given you the break of

your life, but you did it again. And it’s submitted that you’ll likely

do it again. Maybe because you don’t think there’s any kind of a

program out in the great world that is fashioned for you, and that
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you’re waiting for them to fashion something that you should be

working on for yourself. You are the one who has to create the

program. You don’t have to expect somebody in the world to create

a program for you. There are all kinds of program[s] that, if you take

advantage of them, they would benefit you, greatly benefit you. I

wish I didn’t have to give you 151 months.

The district court then proceeded to impose a sentence of fifty-seven months’

imprisonment:

Well, I’ve considered this. I may be an absolute fool to do

this, but under the statute, and particularly with respect to the

characteristics of the defendant, I’m very troubled to regard this man

as a serial career offender, although he certainly is under the

definition of the guidelines.

. . . .

. . . . The Court considers that a just and fair sentence for this

crime . . . . But I’m convinced that for this crime, 57 months is

adequate and that is almost five years . . . .

The district court then concluded the sentencing hearing by stating as follows:

“The first time shame on you, the second time shame on me. So maybe I’m a fool

to have given you this kind of a break twice, but somehow I have a feeling about

you that you can make it and you’re going to.”

According to the statement of reasons attached to the judgment, the district

court adopted the PSR without change, including the calculation of an advisory

sentencing range of 151 to 188 months. The district court checked the box in the

statement of reasons indicating it sentenced Friedman to a below-guideline

sentence because of “the nature and circumstances of the offense and the history

and characteristics of the defendant pursuant to 18 U.S.C. § 3553(a)(1).” The
9

After sentencing Friedman on the Chase Bank robbery conviction, the

district court moved on to the revocation of Friedman’s supervised release on the

1999 bank robbery conviction. The district court sentenced Friedman to a thirtyseven month term of imprisonment for his violations of the terms of supervised

release and ordered the sentence to be served consecutively to the fifty-seven

month sentence on the Chase Bank robbery. In so doing, the district court noted

“57 and 37 is 94 as compared to 151. I think that’s a fair sentence.” After

sentencing, however, the district court changed the sentence on the supervised

release violations to twenty-four months when it learned that was the maximum

sentence it could impose.

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facts set forth to justify the sentence were “[u]nusual and compelling

characteristics of defendant including changed attitude. Court determined to allow

one more chance after substantial period of incarceration.”9

III. DISCUSSION

A. Standard of Review

After the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005), this court reviews sentences for reasonableness. United States v.

Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008). “Reasonableness

review is a two-step process comprising a procedural and a substantive

component.” United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008). 

Review for procedural reasonableness focuses on whether the district court

committed any error in calculating or explaining the sentence. Gall v. United

States, 128 S. Ct. 586, 597 (2007). Review for substantive reasonableness

focuses on “whether the length of the sentence is reasonable given all the
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circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).” 

Alapizco-Valenzuela, 546 F.3d at 1215 (quotation omitted).

On appeal, the government limits its challenge to the substantive

reasonableness of Friedman’s fifty-seven month sentence. When reviewing a

sentence for substantive reasonableness, this court employs the abuse-ofdiscretion standard, United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir.

2008), a standard requiring “substantial deference to district courts.” United

States v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008) (quotation omitted). “A

district court abuses its discretion when it renders a judgment that is arbitrary,

capricious, whimsical, or manifestly unreasonable.” Munoz-Nava, 524 F.3d at

1146 (quotation omitted). The abuse-of-discretion standard applies without

regard to whether the district court imposes a sentence within or outside the

advisory Guidelines range. Id. That is, this court does not apply a presumption

of unreasonableness to sentencing variances. Id. 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. . . . [T]hat [we] might reasonably have

concluded [] a different sentence was appropriate is insufficient to justify reversal

of the district court.” Id.
10We note the undeniably sparse record in this case certainly bears on the

question whether Friedman’s sentence is substantively reasonable. See United

States v. Bueno, No. 06-4216, 2008 WL 5234045, at *3 (8th Cir. Dec. 17, 2008)

(noting that extensive development of record on remand led court to affirm 

sentence it had previously concluded was unreasonable). To compound matters,

the district court did not undertake to explain, in even a limited fashion, why it

was appropriate to treat Friedman as if he were not a career offender despite his

overwhelmingly extensive criminal history. Cf. United States v. Gall, 128 S. Ct.

586, 597 (2007) (holding that for a sentence to be procedurally reasonable a

district court “must adequately explain the chosen sentence to allow for

meaningful appellate review and to promote the perception of fair sentencing”);

id. (holding that when a district court varies from the advisory Guidelines range it

“must consider the extent of the deviation and ensure that the justification is

sufficiently compelling to support the degree of the variance,” especially given

(continued...)

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B. Analysis

On appeal, the government argues the fifty-seven month sentence imposed

by the district court, a ninety-four month variance from the bottom of the

advisory Guidelines range, is substantively unreasonable when measured against

the factors set out in 18 U.S.C. § 3553(a). In particular, the government asserts

that such a sentence fails to adequately consider the advisory Sentencing

Guidelines, id. § 3553(a)(4); account for Friedman’s extensive recidivist history,

id. § 3553(a)(1); afford adequate deterrence and protect the public from further

criminal conduct, id. § 3553(a)(2); and avoid unwarranted sentencing disparities,

id. § 3553(a)(6). Based on the record in this particular case, we agree with the

government and conclude, even given the highly deferential abuse-of-discretion

standard of review, that the sentence imposed by the district court is substantively

unreasonable.10
10(...continued)

that “a major [variance] should be supported by a more significant justification

than a minor one”). Unfortunately, neither the government nor Friedman asked

the district court to explain its chosen sentence. Thus, any claim that the sentence

imposed by the district court is procedurally unreasonable is waived. United

States v. Torres-Duenas, 461 F.3d 1178, 1182-83 (10th Cir. 2006) (“[W]hen [a

party] fails to object to the method by which the sentence was determined, such as

. . . that the court did not adequately explain the sentence with reference to the

factors set forth in [§ 3553(a)], we review only for plain error.”). In any event,

the government has specifically disclaimed in its brief on appeal any procedural

challenge to the district court’s sentencing decision. Thus, this court must simply

review the substantive reasonableness of the sentence imposed by the district

court pursuant to the factors set out in § 3553(a) against the backdrop of an

exceedingly limited record and an almost complete absence of explanation on the

part of the district court.

11Instead, as the district court made clear at the conclusion of the

sentencing hearing, the sentence imposed in this case was based on the district

court’s hunch or “feeling that [Friedman] can make it.” As noted below at some

length, however, there is simply nothing in the record supporting the district

(continued...)

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It is undisputed that, pursuant to the career offender provisions set out in

U.S.S.G. § 4B1.1, Friedman’s properly calculated advisory Guideline range is 151

to 188 months. In imposing sentence on Friedman, however, the district court

simply disregarded the career offender provisions, stating as follows: “Under the

nature of the offense and the characteristics of the individual under the statute, he

might not be regarded as a career offender and would be given a sentence of 57

months.” Other than noting in the judgment of conviction Friedman’s “changed

attitude,” the district court never identified how the nature of the Chase Bank

robbery or Friedman’s individual characteristics supported a sentence amounting

to 38% of the bottom of the advisory Guidelines range.11 Furthermore, our review
11(...continued)

court’s “feeling” that Friedman would not reoffend if given an exceedingly

lenient sentence. Instead, the only plausible indication from the admittedly

limited record in this case is that Friedman will continue to follow the same

pattern he has followed his entire life: committing crime after crime after crime.

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of the record reveals nothing to distinguish Friedman in any way from the run-ofthe-mill career offender. Gall, 128 S. Ct. at 597 (holding a major variance should

be supported by a “more significant justification”).

To begin, Friedman has an extraordinarily extensive recidivist history. He

admitted at the sentencing hearing that he had committed eight bank robberies. 

At least two of those robberies involved weapons or the threat of weapons. 

Within six months of his release from prison in 1998 on convictions for bank

robbery and armed bank robbery committed in 1986, Friedman robbed more

banks. Within five months of his 2005 release from prison for the 1999 bank

robbery, he committed the Chase Bank robbery. At the time of the Chase Bank

robbery, Friedman was on supervised release for the 1999 bank robbery and was

on federal parole for the bank robberies committed in 1986.

More generally, Friedman’s entire criminal history reveals a continuous

pattern of criminal conduct, beginning from the time he was a juvenile. As a

juvenile, Friedman had adjudications for burglaries, assault with a deadly weapon,

and vehicle thefts. As an adult, in addition to the bank robberies, Friedman was

convicted of attempted escape, damage to a jail, vehicle theft, conspiracy to

escape, assault with a deadly weapon, making a false claim against the
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government, and being a felon with a weapon. As Friedman noted in his letter to

the court in advance of sentencing, he has only been able to remain free of prison

for twenty months out of the twenty-seven years of his adult life.

Thus, as set out above, there is absolutely nothing in Friedman’s criminal

history to distinguish him in a positive way from those falling within the ambit of

the § 4B1.1 career offender provisions. Nor can it be said that the record contains

evidence about Friedman’s other personal characteristics supporting an

extraordinarily lenient sentence. A review of the sentencing transcript and

Friedman’s letter to the court reveals that rather than show remorse for his

crimes, he spent a significant amount of time at sentencing blaming the “system”

for his problems. He likewise showed a complete lack of understanding of the

impact of the Chase Bank robbery when he asserted the teller “wasn’t overly

traumatized” because he did not “swear at the lady,” and his robbing a bank with

a note was “basically the same crime” as passing “a bogus check.” Furthermore,

although there was some discussion at an August 22, 2006, status conference

about obtaining a psychological evaluation of Friedman for use at the sentencing

hearing, the record reveals no such evidence was submitted. Thus, there is simply

nothing in the record regarding Friedman’s personal characteristics indicating

leniency of the magnitude granted by the district court in this case was

appropriate.
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In light of Friedman’s extensive criminal history, failure to accept full

responsibility for his actions, and inability to grasp the impact of his virtually

uninterrupted pattern of violent criminal conduct, the fifty-seven month sentence

imposed by the district court fails to reflect the seriousness of the Chase Bank

robbery, fails to promote respect for the law, fails to provide just punishment for

the offense, fails to afford adequate general deterrence, and fails to specifically

deter future criminal conduct on the part of Friedman. 18 U.S.C. § 3553(a)(2). 

The very purpose of § 4B1.1 is to carry out the congressional mandate that

“certain ‘career’ offenders receive a sentence of imprisonment ‘at or near the

maximum term authorized.’” U.S.S.G. § 4B1.1 background; 28 U.S.C. § 994(h). 

By refusing to treat Friedman as a career offender without any genuinely

distinguishing factors in Friedman’s character and history, the district court

created “unwarranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6); see also

U.S.S.G. § 4B1.1 background (noting the Sentencing Commission has refined the

definition of career offender over time “to focus more precisely on the class of

recidivist offenders for whom a lengthy term of imprisonment is appropriate” in

an effort to avoid unwarranted sentencing disparities). Although this court is well

aware that the district court is in a “superior position to find facts and judge their

import under § 3553(a),” Gall, 128 S. Ct. at 597 (quotation omitted), there is

simply nothing in the limited record in this case to indicate, considering the
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totality of the circumstances, that the sentence imposed by the district court is

reasonable in light of the factors set out in § 3553(a).

In an attempt to persuade this court his sentence is substantively

reasonable, Friedman asserts the district court appropriately took into

consideration that he would receive an additional term of imprisonment for

his violation of supervised release. It is certainly true that immediately after

imposing sentence upon Friedman for the Chase Bank robbery, the district court

proceeded to revoke his supervised release on the 1999 bank robbery conviction. 

The district court sentenced Friedman to a thirty-seven month term of

imprisonment and ordered the sentence to be served consecutively to the sentence

on the Chase Bank robbery. In so doing, the district court noted “57 and 37 is 94

as compared to 151. I think that’s a fair sentence.” 

The record makes clear, however, that the sentence imposed by the district

court on the supervised release violations did not play a significant role in its

determination as to what the appropriate sentence should be for the Chase Bank

robbery. After the completion of the sentencing hearing, the district court

determined it could not sentence Friedman to more than twenty-four months on

his violations of supervised release. The court issued an “Order Clarifying

Judgment” and changed the supervised release sentence to twenty-four months,

but did not make any changes to the bank robbery sentence. If the district court

truly was considering the sentences as a package, it would have added thirteen
12In any event, if the district court did, as a hypothetical matter, drastically

reduce Friedman’s bank robbery sentence to compensate for the consecutive

nature of his sentence upon revocation of supervised release, that would amount

to yet another variance from the advisory Guidelines without any discussion of

the matter or supporting facts in the record. See U.S.S.G. § 5G1.3 app. n.3(c)

(noting a sentence imposed upon revocation of supervised release should be

imposed consecutively to any sentence imposed on an underlying crime which

resulted in the revocation of supervised release); id. § 7B1.3(f) (same).

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months to Friedman’s bank robbery sentence to maintain a total term of ninetyfour months’ imprisonment. The district court, however, made no such change. 

Thus, we simply do not read the record as supporting Friedman’s assertion that

the district court considered the Chase Bank robbery sentence and the sentence on

supervised release as a package which this court should consider in reviewing the

substantive reasonableness of the sentence.12

Friedman next argues the district court simply disagreed with the career

offender provisions of the Guidelines, something it is entitled to do after the

Supreme Court’s decision in Kimbrough v. United States, 128 S. Ct. 558 (2007). 

Contrary to Friedman’s assertion, however, at no time did the district court state

it disagreed with the policies underlying § 4B1.1 or believed § 4B1.1 poorly

reflected the statutory considerations set out in § 3553(a). The district court did

state that “[u]nder the nature of the offense and the characteristics of the

individual, [Friedman] might not be regarded as a career offender and would be

given a sentence of 57 months.” This exceedingly limited and ambiguous

statement, however, simply does not support Friedman’s assertion that the district
13Given our conclusion that the sentence imposed by the district court is not

based on a simple disagreement with the policies underlying § 4B1.1, as opposed

to something about Friedman’s personal characteristics or history, this court need

not delve into a difficult antecedent question: how this court should review

district court sentences based simply on a policy disagreement with the

Guidelines. In Kimbrough v. United States, the question presented was whether

“a sentence . . . outside the guidelines range is per se unreasonable when it is

based on a disagreement with the sentencing disparity for crack and powder

cocaine offenses.” 128 S. Ct. 558, 564 (2007) (quotation omitted). In response,

the Court held that, “under Booker, the cocaine Guidelines, like all other

Guidelines, are advisory only.” Id. Although a sentencing court “must include

the Guidelines range in the array of factors warranting consideration,” it “may

determine, however, that, in the particular case, a within-Guidelines sentence is

‘greater than necessary’ to serve the objectives of sentencing” and it “may

consider the disparity between the Guidelines’ treatment of crack and powder

cocaine offenses.” Id. Nevertheless, in so holding, the Court was careful to note

that “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.” Id. at 575 (quotation omitted). It concluded it did not

need to definitively resolve that question, however, because the crack “Guidelines

do not exemplify the Commission’s exercise of its characteristic institutional

role” of taking into account empirical data and national experience. Id.; see also

Spears v. United States, No. 08-5721, 2009 WL 129044, at *2 (Jan. 21, 2009)

(noting this distinction in Kimbrough). The same certainly cannot be said of the

career offender provisions of the Guidelines. In contrast to the crack Guidelines,

which were not adopted at the express direction of Congress, Kimbrough, 128 S.

Ct. at 570-71, Congress did explicitly direct the Sentencing Commission to

(continued...)

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court believed the career offender guideline poorly reflected the statutory

considerations set out in § 3553(a). Instead, it merely reflects the district court’s

conclusion that something about the nature of the Chase Bank robbery and

Friedman’s history and characteristics called for a substantial variance from the

advisory Guidelines range. For those reasons set out at length above, this

determination, unsupported by the record, amounts to an abuse of discretion.13
13(...continued)

incorporate into the Guidelines, for career offenders convicted of violent crimes,

sentencing ranges that are “at or near the maximum term authorized.” 28 U.S.C.

§ 994(h); see also Kimbrough, 128 S. Ct. at 571 (distinguishing congressional

silence regarding the appropriate sentencing ratio for crack and powder cocaine

with the express direction by Congress in § 994(h) that career violent offenders

receive a sentence near the statutory maximum); U.S.S.G. § 4B1.1 background

(noting the Sentencing Commission has exercised its traditional role of refining

the definition of career offender over time “to focus more precisely on the class

of recidivist offenders for whom a lengthy term of imprisonment is appropriate”

in an effort to avoid unwarranted sentencing disparities).

-21-

Finally, Friedman asserts the sentence imposed by the district court is

based on treatment and rehabilitation and the district court’s decision that

rehabilitation outweighs the other § 3553(a) factors is entitled to deference. Once

again, the problem with this argument is that it finds no support in the record. 

Although the main focus of the sentencing hearing was on Friedman’s long-term

institutionalization and the question whether he even desired to be free from

prison, there was no discussion of how the fifty-seven month sentence imposed by

the district court would advance Friedman’s rehabilitation or open avenues of

treatment foreclosed by a longer sentence. There was no discussion of programs

available to Friedman which could take the place of long-term incarceration

and/or minimize the likelihood of further recidivism on the part of Friedman. 

Indeed, the district court specifically told Friedman it was unrealistic for

Friedman to expect prison officials to develop a program specifically for him. As

this court noted above, although the government did not lodge a challenge to the

procedural reasonableness of the district court’s sentence, the very limited nature
-22-

of the record and the paucity of reasoning on the part of the district court most

certainly bear on our review of the substantive reasonableness of Friedman’s

sentence.

IV. CONCLUSION

This court is well aware that district courts enjoy a strong institutional

advantage in arriving at sentencing decisions, Gall, 128 S. Ct. at 597, and that

those decisions are therefore entitled to substantial deference, Sells, 541 F.3d at

1237. Nevertheless, upon a close review of the exceedingly limited record, this

court is convinced the district court abused its broad discretion in significantly

varying downward from the advisory Guidelines range to sentence Friedman as if

he were not a career offender. The only thing the record in this case reveals is

that Friedman has an extraordinary record as a recidivist bank robber and general

criminal. There is simply nothing in the record to justify treating Friedman as

anything other than a career offender. See id. (holding that “a major [variance]

should be supported by a more significant justification than a minor one”). 

Accordingly, this court must REVERSE the sentence imposed by the district

court and REMAND the matter to the district court for further proceedings

consistent with this opinion.