FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-50652

Plaintiff-Appellee, D.C. No.

v.  8:07-cr-00087-

AHS-1 KEVIN BRIAN ELLIS,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Central District of California

Alicemarie H. Stotler, Senior District Judge, Presiding

Argued and Submitted

March 9, 2011—Pasadena, California

Filed May 26, 2011

Before: Pamela Ann Rymer, Consuelo M. Callahan, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

6999
COUNSEL

Jonathan D. Libby, Deputy Federal Public Defender, Los

Angeles, California, for defendant-appellant Kevin Brian

Ellis.

Robert J. Keenan, Assistant United States Attorney, Los

Angeles, California, for plaintiff-appellee United States.

7002 UNITED STATES v. ELLIS
OPINION

IKUTA, Circuit Judge:

Defendant Kevin Ellis appeals his sentence for seven

counts of bank robbery. He argues that his sentence must be

vacated and the case remanded for resentencing because the

government breached the plea agreement, the district court’s

decision to make an upward departure from criminal history

category II to III, see USSG § 4A1.3, was procedurally erroneous, and the district court’s overall sentence was substantively unreasonable. We hold that the government did not

breach the plea agreement. Further, applying the reasoning in

United States v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006),

we hold that we review upward departures under § 4A1.3 for

substantive reasonableness, not for procedural error, and conclude that the district court’s sentence was substantively reasonable and any procedural error was harmless.

I

During the period from November 29, 2006 to May 3,

2007, Ellis committed seven bank robberies. Dressed in dark

sunglasses, a white dress shirt, a tie, and a dark colored

fedora, Ellis would approach one or two tellers and, either

showing or pointing a simulated hand gun, would demand

they hand over their money. In some cases, Ellis would pass

the teller a note. (On February 3, 2007, for example, the note

read, “I have a gun!! I will shoot you!!”) Ellis would then

place the money into a bag and exit the bank. During his fifth

robbery, on March 6, 2007, Ellis instructed three employees

to get into a closet while he exited the bank. And after the

seventh robbery, on May 3, 2007, he led police on a highspeed chase, which ended with officers using a Pursuit Intervention Technique maneuver (a maneuver which forces the

suspect’s vehicle to abruptly turn sideways to the direction of

travel). Police officers subsequently apprehended Ellis, who

thereafter admitted to committing the seven robberies.

UNITED STATES v. ELLIS 7003
Ellis was charged in a seven-count indictment, each count

relating to one of the seven bank robberies. On June 1, 2009,

Ellis pleaded guilty to all seven counts pursuant to a plea

agreement with the government. As explained in greater detail

below, paragraph 14 of the plea agreement set forth the key

terms relevant to this appeal. The parties’ calculations of the

base offense level and specific adjustments for the seven

counts resulted in a total offense level of 29. The paragraph

also stated that Ellis and the government “agree to not argue

for application of any specific offense characteristic or adjustment other than those stipulated to above.” The government

promised not to make a motion “for an upward departure as

to defendant’s offense level,” but reserved “the right to argue

for an upward criminal history departure of up to Criminal

History Category IV,” and “the right under Booker to argue

for a sentence of up to the high-end of the Guidelines range

for Offense Level 29 and Criminal History Category IV,” i.e.,

151 months.1

The presentence report (PSR) noted the plea agreement’s

offense level calculation and provided its own, also resulting

in a total offense level of 29. The PSR included details of

Ellis’s criminal history. Prior to the seven bank robberies at

1

In full, the relevant portion of the plea deal provided as follows: 

Defendant and the USAO agree to not argue for application of

any specific offense characteristic or adjustment other than those

stipulated to above in this Paragraph. Defendant reserves the right

to argue for a downward departure under the Guidelines, and he

reserves the right under Booker to argue for a downward “variance,” that is, any sentence that he believes to be fair and reasonable. The USAO reserves the right to make all arguments in

opposition to a defense motion for, or USPO recommendation of,

a downward departure or variance. The USAO agrees to make no

motion for an upward departure as to defendant’s offense level,

but it reserves the right to argue for an upward criminal history

departure of up to Criminal History Category IV if standard

application of the Guidelines yields a Criminal History Category

of less than IV. 

7004 UNITED STATES v. ELLIS
issue here, Ellis had been convicted of two criminal offenses.

At age 16, he and another defendant used a pistol to rob two

victims. Ellis was convicted of two counts of armed robbery

and was sentenced to five years in state prison on each count,

to be served concurrently. At age 28, he was convicted of

forcible rape. According to the police report, Ellis grabbed a

woman from behind, beat her with his fists, and forced the

victim to have oral sex and intercourse with him. Ellis was

sentenced to 75 months in state prison for this offense. In

addition, the PSR indicated that Ellis had a troubled childhood

and had been subject to physical and verbal abuse. It also

stated that after his release from prison, Ellis became addicted

to gambling and suffered economic losses which led to his

bank robbery spree. 

After Ellis and the government submitted a first set of

briefs in response to the PSR, the government filed a supplemental sentencing brief, which Ellis claimed constituted a

breach of the plea agreement. (The plea agreement, as well as

the parties’ sentencing briefs, are described in more detail

below.) On December 14, 2009, the district court rejected

Ellis’s claim of breach, and exercised its discretion to impose

an above-Guidelines sentence. 

On appeal, Ellis argues that his sentence must be vacated

for two reasons: first, the government breached the plea

agreement; and second, the sentence imposed by the district

court was procedurally incorrect and substantively unreasonable under 18 U.S.C. § 3553(a).

II

In order to evaluate Ellis’s arguments, we must first examine how the Guidelines apply to Ellis’s offenses, and the differences between the offense level calculations in the PSR

and those agreed to by the parties in the plea agreement.

The calculation of the Guidelines range is a crucial first

step in the sentencing process. Even though the Guidelines are

UNITED STATES v. ELLIS 7005
advisory, they are still the “starting point and the initial

benchmark” for the sentencing process, Kimbrough v. United

States, 552 U.S. 85, 108 (2007) (quoting Gall v. United

States, 552 U.S. 38, 49 (2007)) (internal quotation marks

omitted), and an appellate court “must first ensure that the

district court committed no significant procedural error, such

as failing to calculate (or improperly calculating) the Guidelines range,” Gall, 552 U.S. at 51. If the district court makes

a procedural error, then the ordinary course is to vacate and

remand. See United States v. Munoz-Camarena, 631 F.3d

1028, 1030 n.5 (9th Cir. 2011) (explaining that harmless error

in Guidelines calculations is rare), vacating 621 F.3d 967 (9th

Cir. 2010). “Assuming that the district court’s sentencing

decision is procedurally sound, the appellate court should then

consider the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard.” Gall, 552

U.S. at 51.

The first step in calculating the applicable Guidelines range

is to ascertain a defendant’s offense level, that is, the number

of points associated with his criminal activity. See USSG

§ 1B1.1(a). Ellis’s plea agreement calculated his offense level

as follows. Because seven separate robberies were involved,

the Guidelines’ instructions for grouping similar offenses

were applicable, and they required the parties to start by identifying the count with the highest offense level. Id. §§ 3D1.2,

3D1.3. Here, the parties agreed that Ellis’s most serious count

was Count 5, the March 6, 2007 robbery where three employees were ordered into a closet. This count had a base offense

level of 20. See USSG § 2B3.1(a) (setting the base offense

level for robbery at 20). 

After determining the base offense level, the next step

under the Guidelines is to apply “any appropriate specific

offense characteristics, cross references, and special instructions contained in the particular guideline in Chapter Two in

the order listed.” Id. § 1B1.1(b). In the plea agreement, the

parties agreed to three specific offense characteristics that

7006 UNITED STATES v. ELLIS
would be added to Count 5: two points for the banks’ FDICinsured status, see id. § 2B3.1(b)(1); two points for Ellis’s

physical restraint of the three bank employees by ordering

them into the closet, see id. § 2B3.1(b)(4)(B); and three points

for brandishing the simulated handgun, see USSG

§ 2B3.1(b)(2)(E). This added up to seven additional points,

for a total of 27.

Next, the Guidelines require the application of any applicable adjustments. Id. § 1B1.1(c). The parties agreed to two

adjustments to Count 5. First, the parties added the grouping

adjustment described in §§ 3D1.3(a) and 3D1.4. Because

there were seven separate offenses, the parties added five

points to the offense level of the most serious offense (Count

5). See id. § 3D1.4 (“The combined offense level is determined by taking the offense level applicable to the Group

with the highest offense level and increasing that offense level

by . . . 5 levels [where, as here, there are more than 5 units].”).

Adding five points to the 27 points calculated above adds up

to a total of 32 points. The parties also agreed to a second

adjustment: a reduction of three points for acceptance of

responsibility. See id. § 3E1.1. This led to a total offense level

calculation of 29 points. 

The PSR’s calculation of the total offense level was the

same as the parties’ calculation in the plea agreement, with

one exception. Specifically, the PSR concluded that Count 7

(the robbery involving the high-speed chase) had the same

offense level as Count 5 (which the parties had agreed was the

most serious count). According to the PSR, during the robbery described in Count 7, Ellis “recklessly created a substantial risk of serious bodily injury because he drove at a high

rate of speed, failed to stop at marked stop signs, drove on the

opposite side of the road, and side-swiped an occupied vehicle.” Therefore, the PSR determined that a 2-point upward

adjustment for obstruction of justice under § 3C1.2 should

apply. As a result, both Count 7 and Count 5 had an offense

level calculation of 27. This change had no effect on the total

UNITED STATES v. ELLIS 7007
offense level calculation, because adding five points to either

Count 5 or Count 7 still resulted in a total of 32 points. 

Subtracting three points for acceptance of responsibility,

the PSR concluded that the offense level calculation for Ellis

was 29, just as the parties had stipulated in the plea agreement.

After completing this offense level calculation, a district

court is authorized by the Guidelines to exercise its discretion

to depart upward or downward from the applicable offense

level range under certain prescribed situations. See id. § 5K.2

Here the plea agreement did not address any departures to

specific offense characteristics or other adjustments, and the

PSR did not recommend any.

After determining the total offense level, the Guidelines

next require a determination of the defendant’s criminal history category pursuant to Chapter 4(A) of the Guidelines. See

id. § 1B1.1(f). This category is determined by adding points

for each qualifying prior sentence according to the instructions in § 4A1.1. Although as a general rule, “prior sentence[s],” i.e., “any sentence previously imposed upon adjudication of guilt . . . for conduct not part of the instant offense,”

id. § 4A1.2(a), are not included in a defendant’s criminal history calculation when he committed the offense as a juvenile,

id. § 4A1.2(d), or more than 15 years ago, id. § 4A1.2(e), the

court may nonetheless consider them if it “finds that a sentence imposed outside [the 15 year] time period is evidence

of similar, or serious dissimilar, criminal conduct,” id.

§ 4A1.2 app. n.8. The PSR determined that Ellis’s criminal

history category was II, because his prior armed robbery con2There are two types of departures under the Guidelines. See USSG ch.

1, Pt. A, cmt. 4(b). The first, under § 5K, permits upward and downward

departures to a specific offense characteristic or other adjustment. The second, under § 4A1.3, allows upward and downward departures to the applicable criminal history category. 

7008 UNITED STATES v. ELLIS
viction was stale. See id. § 4A1.2(e)(1) (“Any prior sentence

of imprisonment exceeding one year and one month that was

imposed within fifteen years of the defendant’s commencement of the instant offense is counted.”). The PSR did not recommend any departures for the criminal history category

pursuant to § 4A1.3. As noted above, the plea agreement did

not stipulate any criminal history category, but the government reserved the “right to argue for an upward criminal history departure of up to Criminal History Category IV.” 

Having pegged Ellis’s total offense level at 29 and his

criminal history as Category II, the PSR determined that the

sentencing range was 97-121 months. Finally, the PSR recommended a 97-month sentence, at the bottom of the range. For

reasons discussed below, the district court departed upward to

criminal history Category III, leading to a Guidelines range of

102 to 135 months, and then further varied upwards, determining that a 151-month sentence was necessary to meet the

goals of 18 U.S.C. § 3553(a). 

III

We now turn to Ellis’s claim that the government breached

the plea agreement through statements it made in its supplemental sentencing brief. Although the standard of review for

a district court’s determination on this issue is unclear, compare United States v. Salemo, 81 F.3d 1453, 1460 (9th Cir.

1996) (interpretation of plea agreement reviewed de novo, but

whether facts demonstrate breach reviewed for clear error),

with United States v. Schuman, 127 F.3d 815, 817 (9th Cir.

1997) (per curiam) (de novo), we need not resolve this inconsistency here, because under either standard, the district court

did not err. 

[1] As variants of a contract, plea bargains are measured

by contract law standards. United States v. Trapp, 257 F.3d

1053, 1056 (9th Cir. 2001). Courts enforce the literal terms of

a plea agreement, United States v. Johnson, 187 F.3d 1129,

UNITED STATES v. ELLIS 7009
1134 (9th Cir. 1999), construing ambiguities in favor of the

defendant, United States v. Quach, 302 F.3d 1096, 1100-01

(9th Cir. 2002). The government may breach an agreement

when it attempts to influence the district court “to impose a

harsher sentence than the one to which the government agreed

in the plea agreement to recommend.” United States v. Allen,

434 F.3d 1166, 1175 (9th Cir. 2006) (citing United States v.

Mondragon, 228 F.3d 978, 980-81 (9th Cir. 2000)). It may

also breach an agreement when it “contradicts [a] recommendation with statements indicating a [different] preference.”

United States v. Camarillo-Tello, 236 F.3d 1024, 1027 (9th

Cir. 2001). Where the government promises to abstain from

making a sentencing recommendation, it may not argue that

“its inadvertent breach [in making a recommendation] is

immaterial,” because the fact that “the breach of agreement

was inadvertent does not lessen its impact,” Santobello v. New

York, 404 U.S. 257, 262 (1971).

Ellis’s arguments that the government breached the plea

agreement focus primarily on Section III of the “Argument”

section of the government’s supplemental brief, which is entitled: “BOOKER-BASED ARGUMENTS FOR AN UPWARD

DEPARTURE.” The first sentence in this section states: “Beyond the points raised in the government’s initial brief, four

other factors warrant an upward variance under Booker.” The

government added that “[t]he plea agreement authorizes the

government to make Booker-based arguments in support of

the 151-month sentencing recommendation.” 

Section III then made four arguments as to why the court

should adopt the government’s sentencing recommendation of

151 months “to achieve the goals of sentencing set forth in 18

U.S.C. § 3553(a).” Most important here, the government first

argued that “due application of the Guidelines, namely Section 3C1.2, fails to account for the fact that defendant ‘recklessly created a substantial risk of death or serious bodily

injury to another person in the course of fleeing from a law

enforcement officer’ after committing his last bank robbery.”

7010 UNITED STATES v. ELLIS
This failure stemmed from the fact that “[a]s reflected in the

PSR and the plea agreement, the 2-level adjustment available

under Section 3C1.2 [was] applied before the adjustments for

the ‘grouping’ of multiple counts of conviction.” Thus did

“the Section 3C1.2 adjustment applicable to the last robbery

‘c[o]me out in the wash.’ ” Accordingly, the government

argued, “[u]nder Booker” Ellis’s “reckless endangerment support[ed] the government’s sentencing recommendation.”

3

Ellis claims that the government’s argument breached the

government’s agreement “to not argue for application of any

specific offense characteristic or adjustment other than those

stipulated to” in paragraph 14 of the plea agreement. Ellis

points to three alleged breaches of paragraph 14: (1) the government’s failure to object to the PSR’s inclusion of the

§ 3C1.2 adjustment in its calculation of the offense level for

Count 7; (2) the government’s argument that “[a]s reflected in

the PSR and the plea agreement, the 2-level adjustment available under Section 3C1.2 is applied before the adjustments for

‘grouping’ of multiple counts of conviction” and thus fails to

account for the harm of Ellis’s conduct in resisting arrest; and

(3) the government’s argument that § 3C1.2 does not fully

account for Ellis’s conduct as a basis “for an upward departure.” 

[2] We disagree. Notwithstanding the government’s

3The government made three other arguments to support an upward

variance. Specifically, it argued that after Ellis was stopped by the police,

he “engaged in highly provocative conduct that posed a serious risk to

police officers, bystanders, and himself.” The brief also asserted that

Ellis’s “criminal history, offense conduct, and flagrant disregard of the

lawful authority of the arresting officers demonstrate that [he] still constitutes a danger to the public,” and “[t]hat fact alone justifies the government’s recommendation of an above-Guidelines sentence.” Finally, the

government attempted to rebut Ellis’s sentencing submission detailing his

abusive childhood by arguing that the evidence of Ellis’s psychological

issues “show[s] that [Ellis] is presently a hostile and unpredictable menace

to the physical safety of others.” 

UNITED STATES v. ELLIS 7011
clumsy wording in two places, in context, its sentencing brief

merely urged the court to exercise its discretion under Booker

and 18 U.S.C. § 3553(a) to impose a sentence of 151 months,

an argument the government reserved the right to make. Far

from arguing for any change in the offense level calculation,

or suggesting that the calculation of 29 points was erroneous,

the government implored the district court to vary upward

from Ellis’s Guidelines range on account of conduct (the high

speed chase) that was not accounted for in his Guidelines calculation, due to the effect of the grouping rules. 

[3] Specifically, the government’s statement that “[a]s

reflected in the PSR and the plea agreement, the 2-level

adjustment available under Section 3C1.2 is applied before

the adjustments for the ‘grouping’ of multiple counts of conviction,” accurately explained why the grouping rules erased

any effect of the two points associated with Ellis’s § 3C1.2

conduct. And while the heading of Section III of the government’s supplemental sentencing brief, “BOOKER-BASED

ARGUMENTS FOR AN UPWARD DEPARTURE,” used

the word “departure” rather than the word “variance,” its reference to “Booker-based arguments” and the text’s reference

to “an upward variance under Booker” indicate that the government had in mind the district court’s discretion to vary

from the Guidelines calculation under Booker. Indeed, the

government even noted that “[t]he plea agreement authorizes

the government to make Booker-based arguments in support

of the 151-month sentencing recommendation.” The clear

import of this section was to urge the court to increase Ellis’s

ultimate sentence to 151 months, not to move for an upward

departure in Ellis’s offense level. Other than the word “departure” in the heading, nothing in the section recommends that

the district court change Ellis’s offense level pursuant to a

Guidelines-based departure. 

[4] Finally, the government did not breach the plea agreement by failing to object to the PSR’s inclusion of the § 3C1.2

adjustment in its calculation of the offense level for Count 7.

7012 UNITED STATES v. ELLIS
The plea agreement did not require the government to do so,

and in any event, there would have been no basis for such an

argument, given that the PSR’s calculation of Ellis’s total

offense level was the same as the plea agreement’s calculation. Ellis’s reliance on Gunn v. Ignacio, 263 F.3d 965, 971

(9th Cir. 2001), and Mondragon, 228 F.3d at 980-81, to support this argument is misplaced. In Gunn, the government and

the defendant filed a written plea agreement stating that the

government would not oppose the two counts running concurrently with each other. 263 F.3d at 980. The PSR recommended consecutive sentences, which added a total of 18

years to the sentence. Id. at 967, 971. At the sentencing hearing, the prosecutor stated that the government concurred in

the recommendation of the PSR. Id. at 980. We held that the

government breached the plea agreement, because “[f]or a

prosecutor to tell a judge at sentencing that he concurs in a

presentence report is an argument for sentencing in accord

with the presentence report.” Id. at 970. Here, by contrast, the

government did not concur in the PSR’s addition of a 2-point

adjustment to Ellis’s offense level for Count 7. 

[5] Similarly, in Mondragon, the government agreed to

make no recommendation regarding the defendant’s sentence.

228 F.3d at 979. But at the sentencing hearing, it endeavored

to “point out to the Court the serious nature of some of the

listed offenses” in the defendant’s lengthy criminal history

and “that approximately 25 percent of the time the defendant’s been arrested he has run or resisted and that 45 percent

of the time he has failed to appear or warrants have been

issued or he’s had a probation violation.” Id. Reasoning that

the prosecutor’s comments “did not provide the district judge

with any information which he did not already have before

him,” we concluded that they could have been made for only

one reason: “to influence the district court to impose a harsher

sentence than that suggested by appellant’s counsel.” Id. at

980. As such, we held that the government had breached the

plea agreement. Id. at 981. Mondragon is not on point,

because here the government expressly reserved the right to

UNITED STATES v. ELLIS 7013
argue for a higher sentence; it agreed only to refrain from

arguing for application of any specific offense characteristic

or adjustment beyond those set forth in the plea agreement’s

calculation. The government did not breach this agreement,

because it made no argument that the district court should

increase the offense level calculation set forth in the PSR and

plea agreement. 

Accordingly, we reject Ellis’s claim that the government

breached the plea agreement.

IV

Ellis also challenges the district court’s above-Guidelines

151-month sentence. As noted above, the PSR determined

that the sentencing range for Ellis’s offense was 97 to 121

months, and recommended a 97-month sentence. The district

court explained its different analysis in its tentative ruling and

during the sentencing hearing.

In its tentative ruling, the district court considered the government’s motion for a 2-level upward departure in Ellis’s

criminal history category. The court agreed that an upward

departure was warranted, but held that a 1-level departure was

adequate. In reaching this conclusion, the court first referenced the Guidelines sections that authorized such a departure. It noted that under USSG § 4A1.3(a)(1), if “reliable

information indicates that the defendant’s criminal history

category substantially under-represents the seriousness of the

defendant’s criminal history or the likelihood that the defendant will commit other crimes,” an upward departure may be

warranted. The court also noted that only the fifteen-year sunset provision in USSG § 4A1.2(e)(1) precluded it from imposing an additional “3 criminal history points” for Ellis’s

juvenile armed robbery conviction. Because the PSR’s calculation of Ellis’s criminal history calculation omitted this “significant, undisputed piece of defendant’s record: defendant’s

1982 armed robbery conviction, for which he received a 5-

7014 UNITED STATES v. ELLIS
year custodial sentence,” and “fail[ed] to capture the brutality

of defendant’s 1994 [rape] offense, which defendant apparently committed as retaliation for a ‘humiliat[ing]’ comment

made by the victim,” the district court concluded that a 1-

level departure to Criminal History Category III was warranted, resulting in a new sentencing range of 108 to 135

months imprisonment. 

The district court then considered the statutory factors of 18

U.S.C. § 3553(a), and determined that an above-Guidelines

sentence was warranted on account of Ellis’s commission of

seven premeditated “armed bank robberies in 7 months” with

a “simulated handgun and written and verbal threats,” his

restraint of bank employees on one occasion, and his use of

“dangerous tactics to avoid apprehension” on another. But

even “[w]ithout reference to the guideline range . . . the statutory factors of § 3553(a) point to a sentence of 151 months

incarceration, followed by a 5-year period of supervised

release.” 

At the sentencing hearing, the district court reaffirmed its

tentative ruling. The court stated that a 97-month sentence

was not sufficient, and that even a 151-month sentence “was

barely sufficient within the meaning of the law under § 3553.”

While noting it had considered Ellis’s background, the court

emphasized the “seriousness of the offenses,” the need to provide “just punishment” and “adequate deterrence from criminal conduct by all and protecting the public from further

crimes of this individual.” 

A

[6] We first consider Ellis’s challenge to the district court’s

upward departure from Criminal History Category II to III.

Although he frames this as a procedural challenge to the district court’s calculation of the Guidelines range, we conclude

that this is not the correct approach. In analyzing challenges

to a court’s upward and downward departures to a specific

UNITED STATES v. ELLIS 7015
offense characteristic or other adjustment under Section 5K,

we do not evaluate them for procedural correctness, but

rather, as part of a sentence’s substantive reasonableness. See

Mohamed, 459 F.3d at 986. In Mohamed, we held that “the

better view is to treat the scheme of downward and upward

‘departures’ as essentially replaced by the requirement that

judges impose a ‘reasonable’ sentence.” Id. We reasoned that

because “[t]he discretion that the district court judge employs

in determining a reasonable sentence will necessarily take into

consideration many of the factors” enumerated in the section

on offense level departures, “calculat[ing] what departure

would be allowable under the old mandatory scheme” and

then “go[ing] through much the same exercise” to decide if

the sentence was “reasonable” would be not only “redundant,” but pointless. Id. at 986-87. Even if a district court

made a procedural error in applying a departure, the court

“would be free on remand to impose exactly the same sentence,” which we would then review for reasonableness. Id.

at 987. Accordingly, we decided that henceforth, we would

review departures for reasonableness in the first instance and,

if the sentence was reasonable, treat erroneous departures as

“harmless” in light of a district court’s “post-Booker discretion to sentence a defendant outside of the applicable guidelines range.” Id. 

[7] The same reasoning is equally applicable to criminal

history category departures under USSG § 4A1.3. Like

offense level departures, criminal history departures are

entirely discretionary under the Guidelines. See USSG ch. 1,

Pt. A, cmt. 4(b). (“When a court finds an atypical case, one

to which a particular guideline linguistically applies but where

conduct significantly differs from the norm, the court may

consider whether a departure is warranted.”); § 4A1.3(a)(1)

(“If reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood

that the defendant will commit other crimes, an upward departure may be warranted.”). And as with the offense level calcu7016 UNITED STATES v. ELLIS
lations, a criminal history category departure requires the

district court to consider many of the § 3553(a) factors: the

risk of recidivism, see 18 U.S.C. § 3553(a)(2)(C); the nature

of the defendant’s criminal history, see id. § 3553(a)(1); and

the nature of the offense, see id. For this reason, and because

a court “would be free on remand to impose exactly the same

sentence by exercising [its] discretion under the now-advisory

guidelines,” Mohamed, 459 F.3d at 987, it would likewise be

redundant to review the criminal history departure both for

procedural error and substantive unreasonableness. 

[8] Thus, following the reasoning in Mohamed, we hold

that where a district court “has framed its analysis in terms of

a downward or upward departure” for a criminal history category, we will analyze such a departure as “an exercise of postBooker discretion to sentence a defendant outside of the applicable guidelines range.” Id. Our holding makes explicit what

we implicitly held in United States v. Tankersley, 537 F.3d

1100, 1114 (9th Cir. 2008). In Tankersley, after explaining

that “we do not need to consider whether the district court

correctly applied the departure provision in § 5K2.0; rather

we review the district court’s deviation from the applicable

guidelines range for reasonableness,” we cited United States

v. Johnson, 427 F.3d 423, 425-27 (7th Cir. 2005), for the

proposition that it is not necessary to consider whether the

district court correctly applied USSG § 4A1.3 (the provision

at issue here), only whether the defendant’s ultimate sentence

was reasonable. See Tankersley, 537 F.3d at 1114.

B

We next turn to Ellis’s argument that the court did not sufficiently explain its substantial deviation from the applicable

advisory guideline range and also failed to address his

“clinically-diagnosed gambling addiction,” which he argued

was the “root cause” of his bank robberies. A district court

commits procedural error if it fails to provide adequate explanation for the sentence imposed. United States v. Carty, 520

UNITED STATES v. ELLIS 7017
F.3d. 984, 993 (9th Cir. 2008) (en banc) (noting that it would

be procedural error for a district court to “fail adequately to

explain the sentence selected, including any deviation from

the Guidelines range”). Here, however, the record belies both

of Ellis’s claims: the district court expressly identified all of

the sentencing factors it considered, along with the particular

aggravating factors it found significant, namely, Ellis’s commission of seven premeditated “armed bank robberies in 7

months” with a “simulated handgun and written and verbal

threats,” his restraint of bank employees on one occasion, and

his use of “dangerous tactics to avoid apprehension” on

another. And the district court required, as special conditions

of supervised release, that Ellis seek treatment both for his

“gambling addition,” as well as his “mental health” problems,

indicating that it did, in fact, consider his gambling addiction.

C

Finally, we consider Ellis’s challenge to the district court’s

decision to impose an above-Guidelines sentence. In the

absence of a “significant procedural error,” this court reviews

a sentence for substantive reasonableness. Gall, 552 U.S. at

51. “This review requires deference to the district court’s

decision, and should not resemble a de novo review.” United

States v. Cherer, 513 F.3d 1150, 1159-60 (9th Cir. 2008).

Although “a sentence outside the Guidelines carries no presumption of unreasonableness,” Irizarry v. United States, 553

U.S. 708, 714 (2008), the “greater the variance, the more persuasive the justification will likely be because other values

reflected in § 3553(a) . . . may figure more heavily in the balance,” Carty, 520 F.3d at 992. That does not mean the district

court must “tick off each of the § 3553(a) factors to show that

it has considered them.” Id. It does, however, require that

“when a party raises a specific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support of a requested

sentence, then the judge should normally explain why he

accepts or rejects the party’s position.” Id. at 992-93. 

7018 UNITED STATES v. ELLIS
Ellis takes issue with two of the reasons underlying the district court’s decision to vary upward under Booker: his 27-

year-old (juvenile) conviction for armed robbery and the “brutality” of his 15-year-old rape conviction. 

With respect to the armed robbery conviction, Ellis cites

United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir.

2009), for the proposition that a “stale conviction” is more

properly a reason for a “downward variance” than a sentence

enhancement. Amezcua, however, is not on point. There, we

held that it was substantively unreasonable to adhere to a

Guidelines instruction to impose a full 16-level enhancement

for a 25-year-old conviction when the defendant’s “subsequent history show[ed] no convictions for harming others or

committing other crimes.” Id. at 1054-55. Here, by contrast,

the district court cited a serious juvenile conviction for armed

robbery (one that preceded a forcible rape conviction) as only

one of the reasons Ellis’s seven subsequent bank robberies

merited an above-Guidelines sentence. 

As for the rape conviction, Ellis argues that the record does

not support the district court’s determination that the rape was

especially brutal. We disagree; while the description of the

rape in the PSR is brief, we cannot say the district court’s

conclusion was unreasonable, or that the district court relied

on “clearly erroneous facts.” Carty, 520 F.3d. at 993. Moreover, given the overall reasonableness of the sentence, as

explained below, and the district court’s conclusion that even

“[w]ithout reference to the guideline range” it would have

imposed a sentence of 151 months, any error in relying on the

rape conviction would be harmless. See Mohamed, 459 F.3d

at 987 (“If we were to declare the sentence reasonable, then

the erroneous departure would be harmless.”). 

[9] Ultimately, though, Ellis’s point-by-point objections to

the reasons the district court gave for “departing” upward are

beside the point. The question for our purposes is whether a

moderately above-Guidelines sentence for a defendant who

UNITED STATES v. ELLIS 7019
commits seven bank robberies, after serving prison time for

rape and armed robbery, is reasonable under the broad discretion afforded the district court. See United States v. Sylvester

Norman Knows His Gun, III, 438 F.3d 913, 918 (9th Cir.

2006). Here, the court deviated only 30 and 16 months from

the high end of the PSR and its own Guidelines ranges,

respectively, neither of which we would deem “major.” See

Carty, 520 F.3d at 992. We conclude that the district court’s

characterization of Ellis’s seven armed bank robberies as “serious[ ]” offenses that traumatized their victims and its

emphasis on the need to provide “just punishment,” to deter

criminal conduct generally, and to “protect[ ] the public from

further crimes of this individual” reflected a “rational and

meaningful consideration of the factors enumerated in 18

U.S.C. § 3553(a),” United States v. Ressam, 629 F.3d 793,

827 (9th Cir. 2010) (quoting United States v. Tomko, 562 F.3d

558, 568 (3d Cir. 2009)) (internal quotation marks omitted).

AFFIRMED. 

7020 UNITED STATES v. ELLIS