PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 06-4522

DERRY DREW PYLES,

Defendant-Appellee. 

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Irene M. Keeley, Chief District Judge.

(1:05-cr-00023-IMK-AL)

Argued: December 1, 2006

Decided: April 11, 2007

Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.

Vacated and remanded by published opinion. Judge Williams wrote

the opinion, in which Judge Niemeyer and Judge King joined. 

COUNSEL

ARGUED: Zelda Elizabeth Wesley, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg,

West Virginia, for Appellant. James Bryan Zimarowski, Morgantown,

West Virginia, for Appellee. ON BRIEF: Rita R. Valdrini, Acting

United States Attorney, Wheeling, West Virginia, for Appellant. 

Vacated by Supreme Court, filed January 7, 2008
OPINION

WILLIAMS, Circuit Judge: 

Derry Drew Pyles pleaded guilty to one count of aiding and abetting the distribution of crack cocaine, in violation of 21 U.S.C.A.

§ 841 (West 1999 & Supp. 2000). Although the advisory guideline

range called for 63-78 months’ imprisonment, the district court

imposed a variance sentence of 5 years’ probation with 6 months’

home confinement. 

The district court viewed probation as an appropriate sentence in

this case because of Pyles’s extraordinary rehabilitation. The Government appeals this sentence, arguing that the extent of the variance is

unreasonable. While we appreciate the thoughtfulness that went into

the district court’s decision not to impose a sentence of imprisonment,

we agree with the Government that the variance sentence of probation

does not reflect the seriousness of Pyles’s offense or provide a just

punishment. The sentence therefore failed to satisfy adequately the

sentencing factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 &

Supp. 2006). Accordingly, we vacate Pyles’s sentence and remand for

resentencing. 

I.

During the late spring and early summer of 2004, the West Virginia

State Police investigated crack cocaine distribution in the area of

Morgantown, West Virginia. This investigation led undercover officer

Sgt. Joe Adams to call Melodie Hatcher on May 27, 2004, and tell her

that he wanted to purchase $100 of crack cocaine. Hatcher was part

of Pyles’s circle of drug-using friends, which also included Latasha

Linear and Lucinda McCloy. To feed their addiction, these friends

would obtain ("score") drugs for other people and would then keep

("pinch") some of the drugs as payment. 

After Sgt. Adams contacted her, Hatcher called Pyles to "score"

drugs for her. She then took Sgt. Adams to Pyles’s residence in Morgantown, where Sgt. Adams met Pyles as Hatcher obtained the crack

cocaine. While they were waiting for Hatcher, Pyles gave Sgt. Adams

2 UNITED STATES v. PYLES
his phone number so, in his words, he "could cut [Hatcher] out of the

loop and . . . pinch more for [himself]." (J.A. at 102.)1 After leaving

the residence, Hatcher gave Sgt. Adams the crack cocaine minus the

portion that she had "pinched" for brokering the deal. Using the phone

number Pyles had provided him, Sgt. Adams twice contacted Pyles on

June 12, 2004, and purchased $100 quantities of crack cocaine at

Pyles’s home. 

On March 1, 2005, a federal grand jury in the Northern District of

West Virginia returned an indictment charging Pyles with conspiracy

to distribute in excess of five grams of cocaine base ("crack cocaine"),

in violation of 21 U.S.C.A. §§ 846 (West 1999 & Supp. 2006) and

841(b)(1)(B)(iii), and with three counts of distributing .15, .23, and

.33 grams of crack cocaine (reflecting the controlled buys by Sgt.

Adams), in violation of §§ 841(a)(1), (b)(1)(C). The indictment also

charged Hatcher, McCloy, and Linear with the distribution conspiracy

and with substantive distribution offenses. On May 6, 2005, Pyles

entered into a plea agreement with the Government and ultimately

pleaded guilty to one count of aiding and abetting the distribution of

.23 grams of crack cocaine, in violation of 21 U.S.C.A. § 841(a)(1),

(b)(1)(C). The presentence report (PSR) determined that Pyles was

responsible for a total drug relevant conduct of 26.4 grams of crack

cocaine, which was calculated by adding the quantity of controlled

buys by Sgt. Adams to the quantities of crack cocaine that other individuals admitted to buying from Pyles or observed him sell to others.

Based on this quantity of drugs, and taking into account a three-level

reduction for acceptance of responsibility, the PSR calculated a total

guideline offense level of 25. Considering Pyles’s various adult criminal convictions, the PSR determined that Pyles fell within a criminal

history category of II.2 Pyles did not object to the PSR’s determina1Citations to "(J.A. at ___.)" refer to the contents of the Joint Appendix

filed by the parties in this appeal. 

2The PSR included in Pyles’s criminal history determination his two

convictions for driving under the influence (DUI) and one conviction for

domestic battery. Pursuant to U.S. Sentencing Guidelines Manual,

§ 4A1.2(c) (2004), the PSR excluded from Pyles’s criminal history determination two convictions for driving while his license was revoked for

DUI. 

UNITED STATES v. PYLES 3
tion that he was responsible for distributing 26.4 grams of crack

cocaine. 

Pyles’s sentencing hearing commenced on September 2, 2005.

Based on the PSR, the district court determined, without objection,

that the advisory guideline range was 63-78 months’ imprisonment.

The district court then examined the sentencing factors set forth in 18

U.S.C.A. § 3553(a). Considering "the history and characteristics of

the defendant," 18 U.S.C.A. § 3553(a)(1), the court noted that it had

received two letters from Pyles’s employer. The first letter, sent in

May 2005, described Pyles’s efforts to turn his life around, by establishing a new home, paying his debts, and contacting the county sheriff to resolve a DUI charge. The second letter, sent just prior to

Pyles’s sentencing hearing, stated that Pyles "continued to prove himself an excellent employee" and described him as "a trustworthy individual and someone who enjoys the numerous tasks . . . put before

him." (J.A. at 154.) 

The district court also discussed the need for Pyles to receive drug

treatment counseling. This need prompted the district court to continue Pyles’s sentencing so that Pyles could work with a noted substance abuse counselor in Morgantown. 

At the beginning of Pyles’s resumed sentencing hearing on March

24, 2006, the district court noted that Pyles consistently met with his

substance abuse counselor, who reported that Pyles "ha[d] done better

than any person I am currently working with." (J.A. at 55.) Pyles’s

probation officer also reported to the district court that Pyles had

regained his suspended driver’s license and had been free from drugs

and alcohol during his presentencing release. 

The district court then had a colloquy with the parties about the

§ 3553(a) factors and whether a sentence of probation would better

serve those factors than imprisonment. The Government pointed to

the fact that Pyles’s co-defendant, Hatcher, had been sentenced to 37

months’ imprisonment and argued that there was not really any difference between Hatcher and Pyles in terms of their rehabilitation and

that sentencing them differently would create a disparity. The district

court rejected this argument, however, noting that "case law in the

Fourth Circuit . . . says you don’t compare co-defendants to determine

4 UNITED STATES v. PYLES
disparity."3

 (J.A. at 59.) On the other hand, the district court observed

the seriousness of Pyles’s crime and that he was the source of drugs

that his co-defendants distributed to others. 

In the end, however, the district court viewed Pyles’s rehabilitation

as the decisive factor. Based on Pyles’s substantial rehabilitation, the

district court imposed a variance sentence of 5 years’ probation with

a condition of 6 months’ home confinement. 

On April 24, 2006, the district court entered a Judgment in a Criminal Case and included a twenty-two page statement explaining its reasons for imposing a variance sentence of probation. The well-written

statement analyzed in detail how the facts of Pyles’s case comported

with the sentencing factors of § 3553(a). Starting with the factor of

§ 3553(a)(1), "the nature and circumstances of the offense and the history and characteristics of the defendant," the district court stated that

"Pyles’[s] history and characteristics were determinative. His personal

rehabilitative efforts both pre- and post-conviction have been extraordinary, and beyond anything seen in other criminal cases this judge

has handled during almost fourteen years of criminal sentencing

under the guidelines." (J.A. at 137.) The district court observed that

Pyles abruptly stopped using drugs more than six months before he

was indicted and that Pyles had continued on a path of rehabilitation

by proving himself to be a good employee, repaying past debts, rectifying a DUI offense, and abstaining from drugs. 

The district court recognized that, while Pyles’s rehabilitation was

extraordinary, his drug distribution offense was serious. See 18

U.S.C.A. § 3553(a)(1) (requiring sentencing courts to consider the

"nature and circumstances of the offense"). In fact, the district court

concluded that the one count of aiding and abetting distribution to

which Pyles pleaded guilty did not actually reflect the extent or seriousness of Pyles’s offense. As the court explained, "Pyles’ offense

was part of a quintessential crack case involving a significant amount

3The district court did not cite a particular case, but it could have been

referring to United States v. Ellis, 975 F.2d 1061 (4th Cir. 1992), in

which we held that, absent proof of prosecutorial misconduct, "a district

court may not depart downward based upon the disparity of sentences

among co-defendants." Id. at 1066. 

UNITED STATES v. PYLES 5
of a dangerous drug, multiple sales, and numerous people." (J.A. at

145.) 

With these facts in mind, the district court then proceeded to consider the need for Pyles’s sentence "(A) to reflect the seriousness of

the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal

conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional treatment in

the most effective manner." 18 U.S.C.A. § 3553(a)(2). The district

court concluded that "a sentence of probation will allow Pyles to complete valuable vocational training and take advantage of available

opportunities for advancement at work in the most effective manner."

(J.A. at 146 (citing § 3553(a)(2)(D).) Because Pyles had been monitored for drug use and tested negative at every screening during the

six months prior to his indictment, the district court concluded that

"incarceration is not necessary to protect the public from further

crimes by Pyles, (18 U.S.C. § 3553(a)(2)(C)), and a sentence of probation that includes home confinement will sufficiently restrict his

freedom to deter any risk of future criminal conduct. (18 U.S.C.

§ 3553(a)(2)(B))." (J.A. at 147.) Although it noted that aiding and

abetting the distribution of crack cocaine was a serious offense, the

district court concluded that a variance sentence of 5 years’ probation

was sufficient, but not greater than necessary, to punish Pyles for his

offense. 

Finally, the district court considered whether the variance sentence

would create "unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct."

18 U.S.C.A. § 3553(a)(6). Although expressly acknowledging that

Pyles’s variance sentence would indeed create a sentencing disparity

relative to other defendants convicted of distributing crack cocaine,

the district court concluded that the disparity was warranted because

of Pyles’s unique rehabilitation. (J.A. at 149-50 ("[I]ncarceration [of

Pyles] would be a gross mistake, a warehousing effort that would be

a poor substitute for the positive rehabilitative influence Pyles has

found in work, counseling, and education outside the correctional system.").) 

6 UNITED STATES v. PYLES
Having determined that a variance sentence was warranted under

§ 3553(a), the district court analyzed whether the extent of the variance sentence was justified by comparing Pyles’s case with our decision in United States v. Moreland, 437 F.3d 424 (4th Cir. 2006),

which vacated a variance sentence because the extent of the variance

— a reduction from 360 months to 120 months’ imprisonment — was

unreasonable. Id. at 437. The district court observed that in Moreland

the extent of the variance was unreasonable because the defendant in

that case was a repeat drug offender and because the defendants’s

"‘desultory pursuit of his education and his spotty employment history . . . can provide little confidence in his willingness to become a

productive member of society, irrespective of his ability to do so.’"

(J.A. at 151 (quoting Moreland, 437 F.3d at 437.).) By contrast, the

district court concluded that Pyles was unlike the defendant in Moreland because Pyles was "not a repeat drug offender." (J.A. at 151.)

Further, unlike the defendant in Moreland, Pyles not only "exhibited

a willingness to become a productive member of society . . . he has

achieved that goal." (J.A. at 152.) For these reasons, the district court

concluded that it was reasonable to impose a variance sentence of 5

years’ probation with a condition of 6 months’ home confinement. 

The Government appeals this variance sentence. We have jurisdiction pursuant to 18 U.S.C.A. § 3742(b) (West 2000 & Supp. 2006)

(authorizing the Government to appeal sentencing decisions) and 28

U.S.C.A. § 1291 (West 2006). 

II.

A.

Before the establishment of the mandatory Sentencing Guidelines

by the Sentencing Reform Act (SRA) of 1984, a sentencing judge had

"wide discretion to decide whether the offender should be incarcerated and for how long, whether he should be fined and how much,

and whether some lesser restraint, such as probation, should be

imposed instead of imprisonment or fine." Mistretta v. United States,

488 U.S. 361, 363 (1989) (emphasis added). Because the sentencing

"court’s determination as to what sentence was appropriate met with

virtually unconditional deference on appeal," there was effectively no

appellate review of the sentence imposed. Id. at 364. 

UNITED STATES v. PYLES 7
The SRA changed this scheme. Not only did the SRA establish

mandatory Sentencing Guidelines to circumscribe a sentencing

judge’s discretion, it established appellate review of sentences.

Although the Supreme Court held in United States v. Booker, 543

U.S. 220 (2005), that the mandatory application of the Guidelines was

inconsistent with Sixth Amendment principles, id. at 244, it addressed

the constitutional defect by severing and excising the portion of the

SRA that made the Guidelines mandatory while also maintaining

appellate review. The Sentencing Guidelines are no longer mandatory, but post-Booker a district court still "must consult those Guidelines and take them into account when sentencing." Id. at 264. We in

turn review the district court’s sentencing decision for reasonableness,

which serves "to iron out sentencing differences." Id. at 263. 

A district court imposing a sentence in the wake of Booker "must

engage in a multi-step process that begins with correctly determining

the defendant’s Guideline range." United States v. Tucker, 473 F.3d

556, 560 (4th Cir. 2007). The court must then "determine whether a

sentence within that range . . . serves the factors set forth in § 3553(a)

and, if not, select a sentence [within statutory limits] that does serve

those factors."4 Moreland, 437 F.3d at 432 (alterations in original)

(internal quotation marks omitted). 

4Under § 3553(a), a sentencing court must consider 

(1) the nature and circumstances of the offense and the history

and characteristics of the defendant; 

(2) the need for the sentence imposed— 

(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the

offense; 

(B) to afford adequate deterrence to criminal conduct; 

(C) to protect the public from further crimes of the defendant; and 

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional treatment in the most effective manner; 

(3) the kinds of sentences available; 

8 UNITED STATES v. PYLES
Selecting a non-guideline range sentence requires two additional

steps. First, the court "should . . . look to whether a departure is

(4) the kinds of sentence and the sentencing range established

for— 

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines— 

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any

amendments made to such guidelines by act of Congress

(regardless of whether such amendments have yet to be

incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and 

(ii) that, except as provided in section 3742(g), are in

effect on the date the defendant is sentenced; or 

(B) in the case of a violation of probation or supervised

release, the applicable guidelines or policy statements issued

by the Sentencing Commission pursuant to section 994(a)(3)

of title 28, United States Code, taking into account any

amendments made to such guidelines or policy statements by

act of Congress (regardless of whether such amendments have

yet to be incorporated by the Sentencing Commission into

amendments issued under section 994(p) of title 28); 

(5) any pertinent policy statement— 

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any

amendments made to such policy statement by act of Congress

(regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments

issued under section 994(p) of title 28); and 

(B) that, except as provided in section 3742(g), is in effect

on the date the defendant is sentenced. 

(6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct; and 

(7) the need to provide restitution to any victims of the offense.

18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006) 

UNITED STATES v. PYLES 9
appropriate based on the Guidelines Manual or relevant case law." Id.

"If an appropriate basis for departure exists, the district court may

depart." Id. Second, the court must determine whether the resulting

range serves § 3553(a)’s sentencing factors; if it does not, the court

may then elect to impose a variance sentence. Id. The district court

"must articulate the reasons for the sentence imposed" and provide an

explanation for the variance that is tied to the § 3553(a) sentencing

factors. Id.

Our review of sentences for reasonableness "involves both procedural and substantive components." Moreland, 437 F.3d at 434. "A

sentence may be procedurally unreasonable, for example, if the district court provides an inadequate statement of reasons or fails to

make a necessary factual finding." Id.; see, e.g., United States v. Davenport, 445 F.3d 366, 372 (4th Cir. 2006) (concluding that the district

court’s statement of reasons for imposing a variance sentence "was

lacking in that the court did not explain how [the] variance sentence

better served the competing interests of § 3553(a) than [a] guideline

sentence would" (internal quotation marks omitted)). "A sentence

may be substantively unreasonable if the court relies on an improper

factor or rejects policies articulated by Congress or the Sentencing

Commission." Moreland, 437 F.3d at 434; see United States v. Eura,

440 F.3d 625,634 (4th Cir. 2006) (vacating a variance sentence based

on the sentencing court’s rejection of the 100:1 crack/powder cocaine

sentencing ratio). 

There is no contention that Pyles’s sentence is procedurally unreasonable.5

 The district court correctly determined, after making appropriate findings of fact, the applicable guideline range; determined that a

sentence within the guideline range did not satisfy the § 3553(a) factors; determined that there was no basis for departure that would

result in a guideline sentence that would serve the § 3553(a) factors;

and elected to impose a variance sentence. See Moreland, 437 F.3d

at 432. Finally, the district court provided an extensive statement of

reasons for why a variance sentence was warranted. Indeed, the dis5At the time of Pyles’s second sentencing hearing, the district court

had the benefit of our decisions in United States v. Eura, 440 F.3d 625

(4th Cir. 2006), and United States v. Moreland, 437 F.3d 424 (4th Cir.

2006), and did an admirable job of following their procedural directions.

10 UNITED STATES v. PYLES
trict court’s statement is a model for written reasons accompanying

the entry of a variance sentence. It carefully identified the competing

concerns of sentencing and cogently explained why, in the district

court’s view, the sentence was appropriate. 

The Government concedes that a variance sentence is warranted in

this case, but contends that the extent of the variance sentence is substantively unreasonable. We have instructed that "[t]he farther the

court diverges from the advisory guideline range, the more compelling the reasons for the divergence must be." Id. at 434. The Government contends that Pyles’s sentence of five years’ probation is an

"extraordinary variance [that] is not supported by extraordinary circumstances." (Appellant’s Br. at 12.) For the reasons that follow, we

agree that the variance sentence imposed is unreasonable. 

B.

At the outset, it will help to describe the extent of the variance sentence. We often refer to variance sentences by noting the scope of the

increase or decrease and describing the fractional or percentage difference between the variance sentence and the applicable guideline

range. See, e.g., Moreland, 437 F.3d at 435 (vacating a variance sentence "two-thirds . . . less than the bottom of the advisory guideline

range"); Tucker, 473 F.3d at 563-64 (vacating a variance sentence that

was "a 114 month increase from the top of the advisory guideline

range," which "represented a 480% increase"). In this case, however,

describing the variance sentence in mathematical terms is not very

helpful because the district court imposed no imprisonment when the

advisory guideline range called for 63-78 months’ imprisonment.

Thus, the variance sentence represents a 100% decrease even though

in actual months it is less than the extent of variances that other courts

have concluded are reasonable.6See United States v. Collington, 461

F.3d 805, 809 (6th Cir. 2006) (affirming as reasonable a variance sentence of 68 months below the advisory guideline range of 188-235

6A variance sentence will always appear to be more dramatic when the

advisory guideline range is low and less dramatic when the range is high.

For example, a 60 month variance from an advisory guideline sentence

of 120 months would be a 50% reduction, but a 60 month variance from

an advisory guideline sentence of 240 months would be a 25% reduction.

UNITED STATES v. PYLES 11
months’ imprisonment); United States v. Hewlett, 453 F.3d 876, 881

(7th Cir. 2006) (affirming as reasonable a variance sentence of 240

months’ imprisonment when the advisory guidelines called for life

imprisonment); United States v. Krutsinger, 449 F.3d 827, 831 (8th

Cir. 2006) (affirming as reasonable a variance sentence 79 months

below the advisory guideline range of 100-125 months’ imprisonment); cf. Moreland, 437 F.3d at 432 (remanding for imposition of a

variance sentence no more than 120 months below the advisory

guideline range). 

Given the nature of the variance sentence before us, it is better to

describe the variance by considering the number of guideline offense

levels between the variance sentence of probation and the recommended guideline range of 63-78 months’ imprisonment. See United

States v. Maloney, 466 F.3d 663, 668 (8th Cir. 2006) ("The offenselevel approach seems more in keeping with our assigned role to further the objectives of the Sentencing Reform Act, because the guideline system established by the Act was designed to adjust sentences

incrementally by offense level, rather than by percentages."); cf.

United States v. Dalton, 477 F.3d 195, 200 (4th Cir. 2007) (instructing that upward departures from Criminal History Category (CHC) VI

must be made by moving down the CHC VI column "to successively

increasing offense levels until an appropriate sentencing range is

reached" (internal quotation marks omitted)). Here, Pyles’s unchallenged guideline offense level was 25, placing him squarely in Zone

D of the Sentencing Table. See U.S. Sentencing Guidelines Manual

ch. 5, pt. A (2004). To impose a sentence of probation with a condition of 6 months’ home confinement, the district court had to vary

sixteen offense levels, placing Pyles in Zone B of the Sentencing

Table. See U.S. Sentencing Guidelines Manual § 5B1.1(a)(2) (authorizing a sentence of probation when the applicable guideline range is

in Zone B if the sentence includes home detention). We must consider

whether a variance of sixteen offense levels is reasonable in this case.

C.

1.

The Government argues that the extent of the variance sentence is

unreasonable because the district court failed to consider the need to

12 UNITED STATES v. PYLES
avoid unwanted sentencing disparities. See 18 U.S.C.A. § 3553(a)(6).

Pointing to the fact that Pyles’s co-defendant, Melodie Hatcher, had

also been rehabilitated but was sentenced to 37 months’ imprisonment, the Government contends that a variance sentence may be warranted but that the sentence should be 38 months’ imprisonment —

one more month than Ms. Hatcher — to reflect Pyles’s greater culpability. 

We reject the Government’s argument on this point because

§ 3553(a)(6) is concerned with whether a particular defendant’s sentence creates a sentencing disparity with all other similarly situated

federal defendants. In other words, "the kind of ‘disparity’ with which

§ 3553(a)(6) is concerned is an unjustified difference across judges

(or districts) rather than among defendants to a single case." United

States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006); cf. United

States v. Khan, 461 F.3d 477, 500 (4th Cir 2006) (vacating a variance

sentence as unreasonable because the district court "focused almost

exclusively" on imposing a sentence similar to a co-defendant). 

This is not to say that a district court, in imposing a variance sentence, cannot look to what variances were given co-defendants. A

court may find such an approach helpful. But the extent of a variance

will not be unreasonable under § 3553(a)(6) merely because it creates

a disparity with a co-defendant’s sentence. 

2.

Other reasons, however, lead us to conclude that the extent of the

variance was unreasonable. The district court imposed a punishment

of probation only, rather than a variance sentence of imprisonment,

because it concluded a sentence of imprisonment would be greater

than necessary to comply with the sentencing purposes of 18

U.S.C.A. § 3553(a)(2). In the district court’s view, "federal sentencing policy is not purely retributive. It does not mandate warehousing

individuals who reclaimed their lives long before they were indicted

and arrested." (J.A. at 147.) Noting all the steps that Pyles had taken

to change his life and rectify past wrongs, the district court concluded

that "neither the public, society nor Pyles will benefit from a sentence

of incarceration." (J.A. at 148.) 

UNITED STATES v. PYLES 13
We conclude that in rejecting a sentence of imprisonment, the district court failed to place sufficient weight on "the need for the sentence imposed . . . to reflect the seriousness of the offense . . . and

to provide just punishment for the offense," 18 U.S.C.A.

§ 3553(a)(2)(A), in conjunction with "the kinds of sentence . . . established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines," 18

U.S.C.A. § 3553(a)(4) (emphasis added). In rejecting a sentence of

imprisonment, the district rejected the Sentencing Commission’s

judgment that an offense of this kind — one involving crack cocaine

— is a serious offense that must be punished by a meaningful sentence of imprisonment. 

"Congress has made a decision to treat crack cocaine dealers more

severely" than dealers of other drugs, such as powder cocaine. Eura,

440 F.3d at 633. To effectuate this decision, the Guidelines have

established base offense levels that require imprisonment even for the

smallest quantity of crack cocaine.7 The district court did not, however, attribute to Pyles the smallest quantity of crack cocaine, and

Pyles did not commit the least serious crack cocaine offense. The district court determined without objection by Pyles that he was responsible for 26.4 grams of crack cocaine, an amount that, if proven to a

jury, carries a significant statutory penalty. In fact, if Pyles had

pleaded guilty to an indictment count charging this amount, he would

have been subject to a mandatory minimum of 5 years’ imprisonment.

See 21 U.S.C.A. § 841(b)(1)(B). Further, the district court recognized

7For example, the lowest guideline base offense level available for a

criminal offense involving crack cocaine is 12. See U.S. Sentencing

Guidelines Manual § 2D1.1(c)(14) (assigning a base offense level of 12

for less than 250 milligrams of cocaine base). Even if Pyles had been

attributed the smallest quantity of crack cocaine and was given a twolevel reduction for acceptance of responsibility (a three-level reduction

is not available for offense levels under 16), with his criminal history he

would still fall within Zone C, which, under the Guidelines, does not

allow for a sentence of probation. See U.S. Sentencing Guidelines Manual § 5B1.1 cmt. n.2 ("Where the applicable guideline range is in Zone

C or D of the Sentencing Table . . . , the guidelines do not authorize a

sentence of probation."). Thus, in imposing a variance of sixteen offense

levels, the district court had to dip below the lowest offense level established for the least serious crack cocaine offense. 

14 UNITED STATES v. PYLES
that the seriousness of Pyles’s offense was not adequately reflected in

the charge to which he pleaded guilty. Pyles did not only aid and abet

the distribution of crack cocaine, he acted as a supplier for his codefendants and allowed them to complete drug transactions in his

home. 

To be sure, the Guidelines are no longer mandatory, and we recognize that 21 U.S.C.A. § 841(b)(1)(C), the offense to which Pyles

pleaded guilty, establishes a statutory sentencing range of 0-20 years’

imprisonment, thereby authorizing a sentence of probation. Booker

did not, however, return us to the pre-Guidelines world where a district court had virtually unreviewable sentencing discretion, including

unreviewable discretion about whether to impose imprisonment at all.

District courts must still consult the Guidelines when determining a

sentence, Booker, 543 U.S. at 264, and our review of a sentence’s reasonableness in light of the § 3553(a) factors is informed by the Guidelines because they embody many of Congress’s stated objectives in

§ 3553(a), United States v. Johnson, 445 F.3d 339, 343 (4th Cir.

2006). In other words, some variance sentences, no matter how meticulously arrived at, are unreasonable by virtue of their failure to

advance the purposes of sentencing stated in § 3553(a). See United

States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006) ("There [are]

sentences outside the range of reasonableness that do not achieve the

purposes of sentencing stated in § 3553(a) and that thus the district

court may not impose."). 

The fact that under the Guidelines the lowest base offense level for

crack cocaine distribution does not authorize a sentence of probation

within the range of sentences available indicates that it is a serious

offense requiring a serious punishment of incarceration. In this case,

which involved a not insubstantial amount of crack cocaine, the district court’s imposition of a sentence of probation rather than incarceration does not "reflect[ ] . . . the offense’s seriousness . . . ." Eura, 440

F.3d at 633. 

This is not to say that a sentence of probation is per se unreasonable in crack cocaine distribution cases or that a sentence of probation

can never be reasonable when the Guidelines call for imprisonment.

Such a sentence may be reasonable, for example, when the quantity

of crack cocaine is small, resulting in a low guideline offense level

UNITED STATES v. PYLES 15
that requires a variance of only one or two offense levels to fall within

guideline Zone B. But the facts of this case — largely centering on

Pyles’s extraordinary rehabilitation — do not justify this variance sentence.8

 Pyles has done precisely what the law expects: he has stopped

committing crimes. Although this fact may be extraordinary in that it

is unusual, it does not authorize "a get-out-of-jail-free card." Martin,

455 F.3d at 1238. In light of the seriousness of Pyles’s crack cocaine

distribution offense, a sentence of probation does not comply with

Congress’s direction that a sentence "reflect the seriousness of the

offense . . . and . . . provide just punishment for the offense." 18

U.S.C.A. § 3553(a)(2)(A). 

III.

We do not question the district court’s determination that Pyles’s

8We note that a majority of the published opinions of our sister courts

of appeals have held sentences of probation, or sentences tantamount to

probation, to be unreasonable when the Guidelines have called for meaningful sentences of incarceration. See United States v. Davis, 458 F.3d

491, 500 (6th Cir. 2006) (vacating a sentence of 1 day imprisonment

when the advisory guideline range was 30-37 months’ imprisonment);

United States v. Martin, 455 F.3d 1227, 1239 (11th Cir. 2006) (vacating

a sentence of 7 days’ imprisonment when the advisory guideline range

was 108-135 months’ imprisonment); United States v. Crisp, 454 F.3d

1285, 1290-91 (11th Cir. 2006) (vacating a sentence of 5 hours’ imprisonment when the post-departure range was 6-12 months’ imprisonment);

United States v. Robinson, 454 F.3d 839, 843 (8th Cir. 2006) (vacating

a sentence of probation when the advisory guideline range was 63-78

months’ imprisonment); United States v. Cage, 451 F.3d 585, 596 (10th

Cir. 2006) (vacating a sentence of 6 days’ imprisonment when the advisory guideline range was 46-57 months’ imprisonment); United States v.

Gall, 446 F.3d 884 (8th Cir. 2006) (vacating a sentence of probation

when the advisory guidelines range was 30-37 months’ imprisonment);

cf. United States v. Hampton, 441 F.3d 284 (4th Cir. 2006) (vacating a

variance sentence of probation as procedurally unreasonable). But see

United States v. Wadena, 470 F.3d 735, 739-40 (8th Cir. 2006) (affirming a variance sentence of probation when the advisory guideline range

was 18-24 months’ imprisonment); United States v. Husein, 478 F.3d

318, 340 (6th Cir. 2007) (affirming a departure sentence of 1 day imprisonment when guideline range was 37-46 months’ imprisonment). 

16 UNITED STATES v. PYLES
post-offense efforts to turn around his life have been extraordinary.

It is unavoidable, however, that crime has consequences. Because

Pyles’s crack cocaine distribution offense is a serious crime that must

be punished by a sentence of imprisonment, we conclude that his variance sentence of 5 years’ probation is unreasonable, but that conclusion should not be taken as a statement that no variance sentence is

warranted. We therefore vacate his sentence and remand for resentencing.

VACATED AND REMANDED

UNITED STATES v. PYLES 17