United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2008 Decided June 3, 2008 

No. 07-3132 

IN RE SEALED CASE

Appeal from the United States District Court 

for the District of Columbia 

(No. 99cr00278) 

 David B. Smith argued the cause for appellants. 

 Katherine M. Kelly, Assistant U.S. Attorney, argued the 

cause for appellee. With her on the brief were Jeffrey A. 

Taylor, U.S. Attorney, Roy W. McLeese, III and Ann H. 

Petalas, Assistant U.S. Attorneys. 

 Before: GINSBURG, BROWN, and KAVANAUGH, Circuit 

Judges. 

 Opinion for the court filed by Circuit Judge BROWN. 

 Dissenting opinion filed by Circuit Judge KAVANAUGH. 

 BROWN, Circuit Judge: The defendant appeals his 

eighteen month prison sentence after revocation of supervised 
2 

release. We vacate the sentence and remand for the district 

court to explain its reasoning. 

I 

 Appellant pled guilty in 1999 to two counts of 

distribution of cocaine base, one count of unlawful use of a 

“communication facility,” see 21 U.S.C. § 843(b), and one 

count of carrying a firearm during a drug-trafficking offense. 

Under the terms of his plea agreement, he cooperated 

extensively with the Bureau of Alcohol, Tobacco, and 

Firearms (ATF), helping the government to convict an 

impressive number of drug traffickers. At his eventual 

sentencing in 2006, the government rewarded his remarkably 

productive efforts by moving for a downward departure from 

the Sentencing Guidelines. The district court obliged, 

sentencing him to time served and five years of supervised 

release. 

 After a series of disputes between Appellant and his 

probation officers, Appellent found himself back before the 

district court. At bottom, the disputes over supervision arose 

because Appellant moved out of the District of Columbia but 

continued to work in this area. His new probation officer 

might have approved of his occasional trips, but Appellant 

repeatedly failed to notify his probation officer about his 

travel plans. In addition, Appellant resisted requests to 

provide his probation officer with required financial 

information, proferring only his bank statement when he was 

asked for detailed accounting. In May 2007, the officer 

decided to place Appellant on house arrest with electronic 

monitoring for four months. Appellant refused to accept this 

sanction; the probation officer responded by transferring the 

case back to the District of Columbia and filing a NonCompliance Report. Finally, in August 2007, the District of 
3 

Columbia probation office asked the sentencing court to 

revoke Appellant’s supervised release because of these 

violations. 

 During two days of hearings, Appellant explained his 

work, his travel, and his financial situation, and his probation 

officers testified about his failure to communicate with them. 

An ATF agent also vouched for the quality of Appellant’s 

cooperation. At the conclusion of the hearing, the district 

judge specifically found Appellant had committed several of 

the violations charged by the probation office. The judge also 

said any defendant who came back before him for violating 

his supervised release faced only one question: “how long 

he’s going to prison for, not whether he’s going,” Hr’g Tr. 

298, Nov. 26–27, 2007. The district judge pointed out he had 

explained this policy to the defendant at the original 

sentencing. Further, the judge explained Appellant “cannot 

be supervised, he would not be supervised, he will not be 

supervised.” Id. Having decided to revoke the release, the 

district judge told counsel he was “going to consider an 

upward departure,” recognizing the Sentencing Guidelines 

recommendation was three to nine months in prison but 

observing he had discretion to sentence Appellant to five 

years because of his underlying convictions. Id. at 298–99. 

The probation office requested the full five-year sentence, 

while the government recommended twelve months; but 

Appellant’s counsel argued for a lenient sentence for 

violations even the government deemed relatively minor. In 

the end, the district judge sentenced Appellant to eighteen 

months’ incarceration, giving no further explanation of his 

reasons. 

 Appellant challenges this sentence as unreasonable, both 

substantively (because eighteen months is too much for what 

he claims were minor violations) and procedurally (because 
4 

the district judge failed to state reasons for the sentence). 

Appellant also appeals the decision to revoke his supervised 

release because he claims the judge applied a uniform policy 

rather than considering his individual circumstances. We 

reject that challenge, but we cannot assess whether the 

eighteen-month sentence is unreasonable in the absence of 

any explanation. Accordingly, we vacate the sentence and 

remand the case to the district court. 

 

II 

A 

 Discretion over sentencing lies entirely with district 

courts, and we may only review a court’s decision for abuse 

of discretion if it is procedurally sound. Gall v. United States, 

128 S. Ct. 586, 597–98 (2007); see also United States v. 

Bolds, 511 F.3d 568, 578 (6th Cir. 2007) (applying Gall to a 

revocation of supervised release). This allocation of 

responsibility arises from the Sentencing Act, which 

continues, even after United States v. Booker, 543 U.S. 220 

(2005), to restrict our jurisdiction over sentencing appeals to 

such matters as sentences imposed “in violation of law.” 18 

U.S.C. § 3742(a)(1); United States v. Dorcely, 454 F.3d 366, 

373 (D.C. Cir. 2006) (interpreting § 3742(a)(1) to allow 

review for reasonableness). “Practical considerations also 

underlie this legal principle.” Gall, 128 S. Ct. at 597. 

“[D]istrict courts have an institutional advantage over 

appellate courts in making these sorts of determinations,” 

since they see many more sentencing cases. Id. at 598. And a 

sentencing judge will generally have greater familiarity “with 

the individual case and the individual defendant before him,” 

due partly to its direct involvement with testimony. Id. at 

597. 
5 

 Given the broad substantive discretion afforded to district 

courts in sentencing, there are concomitant procedural 

requirements they must follow. These requirements serve 

two primary purposes: they develop an adequate record so 

that appellate courts can perform substantive review, and they 

guarantee that sentencing judges continue “to consider every 

convicted person as an individual,” Gall, 128 S. Ct. at 598. 

Both the Sentencing Act and the relevant precedent spell out 

what a district judge must do. The judge “should begin all 

sentencing proceedings by correctly calculating the applicable 

Guidelines range.” Id. at 596. Next, after hearing argument 

from the parties, the judge should consider “all of the 

§ 3553(a) factors to determine whether they support the 

sentence requested by a party,” and “make an individualized 

assessment based on the facts presented.” Gall, 128 S. Ct. at 

596–97; see also 18 U.S.C. § 3553(a); § 3583(e)(3) (citing 

particular § 3553(a) factors as relevant for a decision to 

revoke supervised release). If the court decides to impose a 

sentence outside the Guidelines, it “must consider the extent 

of the deviation and ensure that the justification is sufficiently 

compelling to support the degree of the variance.” Gall, 128 

S. Ct. at 597. In particular, “a major departure should be 

supported by a more significant justification than a minor 

one.” Id. Finally, the judge “must adequately explain the 

chosen sentence to allow for meaningful appellate review and 

to promote the perception of fair sentencing.” Id. The degree 

of explanation required depends on the circumstances. At a 

minimum, a sentencing judge must “state in open court the 

reasons for [his] imposition of the particular sentence.” 18 

U.S.C. § 3553(c). If the sentence departs from the relevant 

guideline or policy statement, the reasons “must also be stated 

with specificity in the written order of judgment and 

commitment.” § 3553(c)(2). 
6 

 Enforcing these procedural requirements is a major 

component of abuse of discretion review. See Gall, 128 S. 

Ct. at 597. Before even considering the substantive aspects of 

a sentence, we “must first ensure that the district court 

committed no significant procedural error, such as . . . failing 

to adequately explain the chosen sentence.” Id. Although a 

district judge need not consider every § 3553(a) factor in 

every case, and we generally presume the judge “knew and 

applied the law correctly,” United States v. Godines, 433 F.3d 

68, 70 (D.C. Cir. 2006) (per curiam), certain minimal 

requirements are indispensable. When a district judge fails to 

provide a statement of reasons, as § 3553(c) requires, the 

sentence is imposed in violation of law. See United States v. 

Perkins, 963 F.2d 1523, 1526–27 (D.C. Cir. 1992) (citing 18 

U.S.C. § 3742(f)(1)); see also United States v. Williams, 438 

F.3d 1272, 1274 (11th Cir. 2006) (per curiam) (without a 

statement, “the sentence is imposed in violation of law” 

(emphasis in original)). If a sentence falls under § 3553(c)(2), 

a written statement must accompany the judgment, and it 

must “at least state why [a] cited factor justified departure” 

from the guidelines. United States v. Ogbeide, 911 F.2d 793, 

795 (D.C. Cir. 1990). 

B 

 Appellant did not object to the district judge’s failure to 

explain his reasons either orally or in writing; nor did he 

object to the district court’s application of a one-strike policy 

for revoking supervised release. We therefore review the 

sentence for plain error. See United States v. Dozier, 162 

F.3d 120, 125–26 (D.C. Cir. 1998). 

 The district judge apparently decided to revoke 

Appellant’s supervised release because that was his standard 

policy. Such a policy seems inconsistent with a district 
7 

judge’s responsibility to decide each defendant’s sentence 

based on his individual circumstances, considering the factors 

the Sentencing Act prescribes as relevant. See 18 U.S.C. 

§ 3583(e)(3) (a court may “revoke a term of supervised 

release” after considering certain of the factors in § 3553(a)); 

id. § 3553(a) (listing factors); cf. Gall, 128 S. Ct. at 596–97 (a 

district court “may not presume that the Guidelines range is 

reasonable”). Nevertheless, this error was not prejudicial, 

because the judge also specifically found Appellant had 

committed several violations of his release conditions and 

explained he thought the defendant incapable of supervision. 

The judge further said he doubted he had excused such 

serious violations before. Since revocation was certainly 

within the contemplation of the Guidelines, this alternative 

reasoning was not clearly insufficient. Cf. Rita v. United 

States, 127 S. Ct. 2456, 2468 (2007) (“Circumstances may 

well make clear that the judge rests his decision upon the 

Commission’s own reasoning that the Guidelines sentence is 

a proper sentence . . . in the typical case, and that the judge 

has found that the case before him is typical.”) 

 On the other hand, the judge imposed an eighteen-month 

sentence without providing any explanation at all. The 

government parses the terse statements of the sentencing 

judge to find some explanation for Appellant’s sentence. The 

government suggests what little the judge said is enough for 

this court to review the sentence and contends the complete 

absence of a written statement is not prejudicial. However, 

the writing requirement is not a mere formality. The 

requirements that a sentencing judge provide a specific reason 

for a departure and that he commit that reason to writing work 

together to ensure a sentence is well-considered. Besides, the 

district judge mentioned his conclusion that Appellant cannot 

be supervised only in reference to his decision to revoke his 

release. The judge gave no explanation at all for choosing a 
8 

sentence of eighteen months, twice the Guidelines maximum 

for this defendant and greater than the maxima for Class C 

violators with much more serious criminal histories. U.S.

SENTENCING GUIDELINES MANUAL § 7B1.4(a) (2007). The 

government justifies the eighteen months by citing 

Application Note 4, which suggests an upward departure may 

be warranted “[w]here the original sentence was the result of 

a downward departure.” Id. § 7B1.4 cmt. n.4. But this 

argument is post hoc, and the judge said no such thing. Nor 

does the government’s argument provide any justification for 

the particular “degree of the variance,” Gall, 128 S. Ct. at 

597. So far as we can tell, the district judge’s choice of 

eighteen months was arbitrary. 

 In making this observation, we are compelled by the 

Sentencing Act, under which the Guidelines are still relevant. 

The fact that eighteen months is twice the Guidelines 

maximum matters because § 3553(c)(2) requires not just a 

statement of reasons, and not just a written statement of 

reasons, but a statement explaining the reason for a departure 

from a guideline or policy statement “with specificity.” See 

Rita, 127 S. Ct. at 2468–69 (noting the run-of-the-mill 

statement of reasons would not suffice for a departure); id. at 

2483 (Scalia, J., dissenting) (noting § 3553(c)(2) still applies 

after Booker); Gall, 128 S. Ct. at 597 (finding it 

“uncontroversial” that greater departures need more detailed 

explanations). 

 We join the Second Circuit in holding that the failure to 

provide a statement of reasons as required by § 3553(c) is 

plain error, “even when the length of the resulting sentence 

would otherwise be reasonable.” United States v. Hirliman, 

503 F.3d 212, 215 (2d Cir. 2007). The error itself is obvious 

enough. And “the required showing of prejudice should be 

slightly less exacting [for sentencing] than it is in the context 
9 

of trial errors.” United States v. Saro, 24 F.3d 283, 287 (D.C. 

Cir. 1994). The absence of a statement of reasons is 

prejudicial in itself because it precludes appellate review of 

the substantive reasonableness of the sentence, United States 

v. Lewis, 424 F.3d 239, 247 (2d Cir. 2005), thus “seriously 

affect[ing] the fairness, integrity, or public reputation of 

judicial proceedings,” United States v. Williams, 488 F.3d 

1004, 1008 (D.C. Cir. 2007). A district judge “must 

adequately explain the chosen sentence . . . to promote the 

perception of fair sentencing.” Gall, 128 S. Ct. at 597. It is 

important not only for the defendant but also for “the public 

to learn why the defendant received a particular sentence.” 

Lewis, 424 F.3d at 247. Arbitrary decisionmaking 

undermines “understanding of, trust in, and respect for the 

court and its proceedings.” Id. We assume Appellant’s 

sentence of eighteen months was not randomly selected, but 

the absence of any explanation makes it seem so. Thus, a 

failure to comply with § 3553(c) causes grave institutional 

harm, as well as simultaneously depriving the defendant of 

the benefit of our review. This failure is therefore plain error. 

III 

 Without a statement of reasons, we are “unable to 

determine” whether Appellant’s sentence is reasonable. 

Ogbeide, 911 F.2d at 795. Accordingly, we must vacate the 

sentence and remand for resentencing in accordance with this 

opinion. 

So ordered.

 

 
 KAVANAUGH, Circuit Judge, dissenting: The defendant 

pled guilty to drug trafficking and gun offenses. Because of 

his extensive cooperation with the Government, the defendant 

gained a significant break at his sentencing, receiving only a 

term of time served and supervised release instead of the 87 to 

108 months’ imprisonment contemplated by the Sentencing 

Guidelines. But the defendant then repeatedly violated the 

conditions of his supervised release. After the probation 

officer reported the violations to the District Court, the court 

held a two-day hearing that lasted more than eight hours. At 

the conclusion, the District Court found that the defendant had 

violated supervised release. The court revoked supervised 

release and sentenced the defendant to 18 months’ 

imprisonment – below the 60-month statutory maximum 

recommended by the probation office but above the 

Guidelines range of three to nine months’ imprisonment for 

supervised-release violations. The District Court explained 

that the defendant had repeatedly violated supervised release 

in various ways, was not amenable to supervision, and had 

received a break at his initial sentencing. 

 The majority opinion vacates the District Court’s 

sentence; the opinion agrees with the defendant that the 

sentence was insufficiently explained under Gall v. United 

States, 128 S. Ct. 586, 597 (2007). The majority opinion 

criticizes the District Court for providing “no explanation at 

all”; for imposing a sentence that seems “arbitrary”; for 

making an “obvious” error; for imposing a sentence that 

appears “randomly selected”; for causing “grave institutional 

harm”; and for “depriving the defendant of the benefit of our 

review.” Maj. Op. at 7, 8, 9. I find those characterizations of 

the District Court’s decision incorrect and entirely 

unwarranted. I would hold that the District Court adequately 

explained the 18-month sentence and easily satisfied the 

procedural requirements of Gall. 
2 

In my judgment, the majority opinion illustrates the 

magnetic pull that the Guidelines still occasionally exert over 

appellate courts in cases involving sentences outside the 

Guidelines range. See Maj. Op. at 7-9. To be sure, the 

Supreme Court’s remedial opinion in Booker was open to 

multiple readings and could have been interpreted to preserve 

this kind of Guidelines-centric appellate review. See Gall, 

128 S. Ct. at 604 (Alito, J., dissenting); United States v. 

Booker, 543 U.S. 220, 311-12 (2005) (Scalia, J., dissenting in 

part) (Remedial opinion “may lead some courts of appeals to 

conclude . . . that little has changed.”); United States v. Henry, 

472 F.3d 910, 918-22 (D.C. Cir. 2007) (Kavanaugh, J., 

concurring). But the Court’s recent decisions in Rita, 

Kimbrough, and Gall, as I read them, do not permit such an 

approach; appellate review is for abuse of discretion and is 

limited to assessing only whether certain procedural 

requirements were met and whether the sentence is 

substantively “reasonable.” Recognizing that the governing 

Supreme Court decisions are not entirely unambiguous, and 

despite my serious concerns about the sentencing disparities 

that could well ensue as a result of the current case law, see 

Gall, 128 S. Ct. at 604-05 (Alito, J., dissenting), I think our 

appellate role in the Booker-Rita-Kimbrough-Gall sentencing 

world is more limited than the majority opinion suggests. See 

Gall, 128 S. Ct. at 602 (reversing Eighth Circuit decision: 

“On abuse-of-discretion review, the Court of Appeals should 

have given due deference to the District Court’s reasoned and 

reasonable decision that the § 3553(a) factors, on the whole, 

justified the sentence.”); Kimbrough v. United States, 128 S. 

Ct. 558, 576 (2007) (reversing Fourth Circuit decision: 

“Giving due respect to the District Court’s reasoned appraisal, 

a reviewing court could not rationally conclude that the 4.5-

year sentence reduction Kimbrough received qualified as an 

abuse of discretion.”). 

 
3 

I 

The Supreme Court recently set forth the role of appeals 

courts in reviewing sentences: We must review a sentence 

under an abuse of discretion standard, ensuring both that the 

District Court did not commit a “significant procedural error” 

and that the sentence is substantively reasonable. Gall v. 

United States, 128 S. Ct. 586, 597 (2007). In assessing 

procedural compliance, we are to ensure that the District 

Court did not: incorrectly calculate the Guidelines range, fail 

to consider the § 3553(a) factors, rely on clearly erroneous 

facts, treat the Guidelines as mandatory, or fail to explain the 

chosen sentence and any deviation from the Guidelines range. 

Id.; see also 18 U.S.C. § 3553(c) (“The court, at the time of 

sentencing, shall state in open court the reasons for its 

imposition of the particular sentence” and must give “the 

specific reason for the imposition of a sentence” outside the 

Guidelines range.). 

A 

In this case, the District Court committed no procedural 

error, much less “significant procedural error,” under Gall. 

The District Court’s hearing on whether to revoke the 

defendant’s supervised release lasted more than eight hours. 

After listening to testimony and argument, the District Court 

found that the defendant had repeatedly violated his 

supervised release. The District Court thoroughly detailed the 

defendant’s violations, including three instances of the 

defendant’s leaving the judicial district without permission, 

two instances of the defendant’s failing to follow the 

probation officer’s instructions, and the defendant’s repeated 

failure to provide “complete and truthful financial 

information” to verify his income. Nov. 27 Tr. at 298. 
4 

In light of those facts, the court possessed authority under 

18 U.S.C. § 3583(e) to revoke the defendant’s supervised 

release. See also U.S. SENTENCING GUIDELINES MANUAL

§ 7B1.3(a). The court did so, stating: “I find that [the 

defendant] has violated the conditions of supervised release 

and his supervised release is revoked.” Nov. 27 Tr. at 296. 

The District Court then correctly calculated the 

Guidelines range of three to nine months applicable to 

ordinary violations of supervised release. See U.S.S.G. 

§ 7B1.4. But the court pointed out that it had discretion under 

United States v. Booker, 543 U.S. 220 (2005), and later cases 

to sentence the defendant up to the statutory maximum of 60 

months. See 18 U.S.C. § 3583(e). The court stated that it 

would consider a sentence above the Guidelines range and 

gave each side an opportunity to make its case for the 

appropriate sentence.1

The Assistant U.S. Attorney suggested a sentence of 12 

months but said it would defer to the probation office’s 

recommendation. The probation officer then stated that the 

defendant was not amenable to supervision and was unwilling 

 1

 I refer to the recommended range under § 7B1.4 as a 

Guidelines range even though it is technically a policy-statement 

range. See U.S.S.G. ch. 7, pt. A, introductory cmts. 1, 3 (“After 

considered debate,” the Commission “has chosen to promulgate 

policy statements only” – not Guidelines – with respect to 

supervised-release revocation to give “greater flexibility to both the 

Commission and the courts” and to “provide better opportunities 

for evaluation by the courts and the Commission. . . . After an 

adequate period of evaluation, the Commission intends to 

promulgate revocation guidelines.”). Because I would rule in favor 

of the Government in this case, I need not address the question 

whether a district court has even broader discretion to depart or 

vary from a policy-statement range. 
5 

to cooperate with conditions of supervised release. He 

expressed particular concern with the defendant’s failure to 

verify his income so as to justify what he was spending. The 

probation officer argued that the defendant’s string of 

violations presented “a serious matter” and ultimately 

recommended the statutory maximum sentence of 60 months’ 

imprisonment, stating that it was the first time in his career he 

had recommended the maximum sentence for violations of 

supervised release. Nov. 27 Tr. at 302. 

The defendant’s counsel argued that under Application 

Note 1 to § 7B1.3, revocation is appropriate only for a second

adjudication of this kind of supervised-release violation 

(although, in fact, the Application Note does not say that). 

Because this was the defendant’s first such adjudication, 

defense counsel argued that revocation was inappropriate. He 

also stated that the defendant had worked as an informant for 

the Government and had a family to support. He further 

argued that if the court were to decide to revoke the 

defendant’s supervised release, any upward departure or 

variance from the three-to-nine-month range would be 

unwarranted. 

After hearing from the parties, the District Court stated 

that the defendant’s initial sentence of no prison time was the 

result of a downward departure and that the court could have 

sentenced him at that time to 108 months in prison. The court 

explained that it had granted the defendant a downward 

departure because “he had demonstrated that he was amenable 

to supervision, but he’s now demonstrated that he’s not.” 

Nov. 27 Tr. at 304-05. The court emphasized that the 

defendant “never once ever verified” his income, as required 

by the probation officer, and stressed again that the defendant 

was “not amenable to supervision.” Id. at 305, 307. The 

court also reminded the defendant of its warning at the initial 
6 

sentencing that a break in sentencing “comes once in a 

lifetime.” Id. at 308. The court then sentenced the defendant 

to prison for 18 months, above the general three-to-ninemonth Guidelines range but below the probation office’s 

recommendation of the statutory maximum of 60 months. 

I would hold that the District Court correctly calculated 

the Guidelines range, adequately considered the §3553(a) 

factors,2

 did not rely on clearly erroneous facts, did not treat 

the Guidelines as mandatory, and sufficiently explained the 

reasons for the above-Guidelines sentence. There was no 

procedural error, much less “significant procedural error,” 

under Gall. 

B 

The majority opinion vacates the sentence because it says 

the District Court did not give “any explanation at all” for 

imposing an 18-month sentence. Maj. Op. at 7. As the above 

recitation shows, however, the record contradicts the majority 

opinion’s conclusion. 

 

In support of its holding, the majority opinion contends 

that “the district judge mentioned his conclusion that [the 

defendant] cannot be supervised only in reference to his 

decision to revoke his release.” Id. The opinion mistakenly 

divides the sentencing proceeding into a “revocation” phase 

and a “sentencing” phase. The opinion cites no authority for 

requiring a rigid temporal divide between a court’s decision to 

revoke supervised release and its imposition of the ultimate 

 2 See United States v. Godines, 433 F.3d 68, 70 (D.C. Cir. 

2006) (“[W]e begin our review with the presumption that the 

district court knew and applied the law correctly.”) (internal 

quotation marks omitted). 
7 

sentence for the violation of supervised release. The 

Guidelines contemplate a single proceeding: “When the court 

finds that the defendant violated a condition of supervised 

release, it may continue the defendant on supervised release, 

with or without extending the term or modifying the 

conditions, or revoke supervised release and impose a term of 

imprisonment.” U.S.S.G. ch. 7, pt. A, introductory cmt. 2(b). 

In this case, the fair implication – indeed, the only implication 

– from the hearing transcript is that the District Court’s stated 

reasons supported both revocation and the ultimate sentence 

of 18 months. By constructing an arbitrary divide between 

revocation and sentence, the majority opinion refuses to give 

the District Court’s statements their fair import. 

Even on its own terms, moreover, the majority opinion’s 

reasoning is flawed because the District Court’s opinion 

satisfies this rigid divide. After the District Court stated that it 

would revoke the defendant’s supervised release, the District 

Court heard argument about the length of the sentence. It 

then reiterated several reasons that justified not only 

revocation, but also the sentence it planned to impose. The 

court underscored “the most significant violation”: that the 

defendant had “never once ever verified” his income, making 

it impossible for the court to verify that “the earnings were 

not from drug dealing.” Nov. 27 Tr. at 298, 305. The court 

stated twice that the defendant was “not amenable to 

supervision.” Id. at 307; see also id. at 304-05. The court 

also referred to its downward departure from the 

recommended Guidelines range at the defendant’s original 

sentencing (from a possible 108-month prison term to 

supervised release), and it reminded the defendant of its 

warning that such a break would come “once in a lifetime.” 

Id. at 308. 
8 

To be sure, the District Court gave all of these reasons 

before it said “18 months.” But I am not aware of any 

requirement that sentencing judges articulate the length of the 

sentence before the reasons, as opposed to articulating the 

reasons before the length of the sentence. 

The majority opinion also claims that the District Court 

provided no justification “for the particular degree of the 

variance” from the three-to-nine-month Guidelines range. 

Maj. Op. at 8 (internal quotation marks omitted). The opinion 

emphasizes that the 18-month sentence is “twice the 

Guidelines maximum for this defendant and greater than the 

maxima for Class C violators with much more serious 

criminal histories.” Id. This analysis reflects a 

misunderstanding of the relevant Guideline and ignores the 

District Court’s reasoning. The defendant here received a 

major downward departure at his initial sentencing. The 

Guidelines recognize this situation as a special case. 

Application Note 4 to Guidelines § 7B1.4 states: “Where the 

original sentence was the result of a downward departure 

(e.g., as a reward for substantial assistance), . . . an upward 

departure may be warranted” when sentencing for a violation 

of supervised release. The majority opinion dismisses the 

Application Note as a “post hoc” appellate argument because 

the District Court did not specifically refer to it during the 

sentencing proceedings. Maj. Op. at 8. Yet the majority 

opinion cites no authority for the proposition that a district 

court must cite the relevant provision of a Guidelines 

Application Note each time it imposes a sentence. As we 

have said repeatedly, a sentencing court is presumed to know 

the law. See United States v. Godines, 433 F.3d 68, 70 (D.C. 

Cir. 2006). The District Court here referred to its earlier 

downward departure, which is exactly what the Application 

Note contemplates a district court should do. See Nov. 27 Tr. 

at 304 (“[W]hen I sentenced him in July of ’06 and gave him 
9 

that break, I could have sentenced him then to 108 

months . . . .”). We must presume that the District Court 

knew that the earlier downward departure was relevant to 

whether an upward departure or variance from the three-tonine-month range was warranted under Guidelines § 7B1.4. 

Moreover, in saying the District Court should have 

provided more explanation, the majority opinion gives undue 

weight to the fact that the 18-month sentence was “twice the 

Guidelines maximum.” Maj. Op. at 8 (emphasis added). The 

Supreme Court has rejected “the use of a rigid mathematical 

formula that uses the percentage of a departure as the 

standard for determining the strength of the justifications 

required for a specific sentence.” Gall, 128 S. Ct. at 595 

(emphasis added). Of direct relevance here, the Supreme 

Court has explained that “deviations from the Guidelines 

range will always appear more extreme – in percentage terms 

– when the range itself is low.” Id. Although the absolute

amount of a departure or variance is apparently relevant under 

Gall to the extent of explanation required, the percentage 

increase from the departure or variance is not. Because a 

nine-month additional sentence is not a particularly 

significant increase, there is no basis to require the District 

Court to give any more detailed explanation than in an 

ordinary outside-the-Guidelines case. The majority opinion 

does not acknowledge this point. 

In sum, the majority opinion’s reasons for vacating the 

District Court’s 18-month sentence are unpersuasive in light 

of the record in this case.3

 

 3

 Although the District Court stated in open court its reasons 

for departing from the Guidelines range, it did not issue a written

statement of those reasons. See 18 U.S.C. § 3553(c)(2) (“[I]f the 

sentence . . . is outside the [Guidelines] range, . . . the specific 

reason for the imposition of a sentence different from that 
10 

C 

 

 Because I would reject the defendant’s procedural 

argument, I also must consider his contention that his 18-

month sentence is substantively unreasonable. That argument 

both misreads the Guidelines and, in any event, overstates the 

current appellate role in enforcing the Guidelines. 

First, even under the Guidelines, an upward departure to 

18 months was entirely appropriate in these circumstances. 

Remember that the Guidelines Application Note states that 

“[w]here the original sentence was the result of a downward 

departure (e.g., as a reward for substantial assistance), . . . an 

upward departure may be warranted.” U.S.S.G. § 7B1.4 app. 

n.4. This case thus plainly falls within the category of 

expressly authorized departures.

Second, in any event, the Guidelines are no longer 

mandatory. And under the Booker-Rita-Kimbrough-Gall

system, the District Court’s decision to impose a sentence of 

18 months (that is, to depart or vary upward by nine months) 

 

described . . . must also be stated with specificity in the written 

order of judgment and commitment . . . .”). Because the defendant 

failed to raise this issue below, our review is for plain error. See 

United States v. Simpson, 430 F.3d 1177, 1183 (D.C. Cir. 2005). A 

district court’s failure to memorialize in writing the reasons the 

court gave orally cannot constitute plain error: Failing to do so 

could not possibly “affect[] the outcome of the district court 

proceedings” or “seriously affect[] the fairness, integrity, or public 

reputation of judicial proceedings.” Id. at 1183 (internal quotation 

marks omitted); see also United States v. Verkhoglyad, 516 F.3d 

122, 133, 137 (2d Cir. 2008) (finding “no plain error” and stating 

that omitting written statement “in the face of sufficient oral 

reasons will rarely rise to the level of plain error”); United States v. 

Loggins, 165 Fed. App’x 785, 788-89 (11th Cir. 2006) (same). 
11 

is not substantively unreasonable. The defendant – who had 

previously pled guilty to serious drug-trafficking and gun 

offenses but had not been sentenced to imprisonment – was 

not amenable to supervision and had repeatedly violated his 

supervised release. Moreover, “both the sentencing judge and 

the Sentencing Commission” have “reached the same

conclusion” – that an upward departure or variance above 

nine months is warranted in these circumstances. Rita v. 

United States, 127 S. Ct. 2456, 2463 (2007). As when a 

District Court gives a defendant a within-Guidelines sentence, 

this “double determination significantly increases the 

likelihood that” departure or variance is reasonable. Id. 

The defendant’s argument ignores critical language from 

Gall rejecting a presumption of unreasonableness or a 

heightened standard of review for non-Guidelines sentences – 

whether “just outside” or even “significantly outside the 

Guidelines range.” 128 S. Ct. at 591. Abuse-of-discretion 

review takes into account “the totality of the circumstances, 

including the extent of any variance from the Guidelines 

range,” but “must give due deference to the district court’s 

decision that the § 3553(a) factors, on a whole, justify the 

extent of the variance.” Id. at 597. “The fact that the 

appellate court might reasonably have concluded that a 

different sentence was appropriate is insufficient to justify 

reversal of the district court.” Id.

Given the totality of the circumstances in this case, the 

18-month sentence is substantively reasonable. 

II 

By treating the Guidelines range as talismanic for our 

appellate review, the defendant’s argument demonstrates a 

serious misunderstanding of the impact of Booker, 
12 

Kimbrough, Rita, and Gall on the current sentencing regime. 

To satisfy the Sixth Amendment, the Supreme Court has said 

the Guidelines must be and are advisory. Our substantive 

review of district court sentences accordingly must be limited. 

Otherwise, the term “advisory” will lose all meaning, and the 

Sixth Amendment problem with the Guidelines will persist. 

See Kimbrough v. United States, 128 S. Ct. 558, 577 (2007) 

(Scalia, J., concurring); United States v. Henry, 472 F.3d 910, 

918-22 (D.C. Cir. 2007) (Kavanaugh, J., concurring). 

Taken together, Booker, Rita, Kimbrough, and Gall mean 

something that courts of appeals can be loath to admit: At 

sentencing, different district judges can now do things 

differently. One district judge may be more lenient; another 

more stringent. One may tend to sentence within the 

Guidelines; another may not. One may vary downward from 

the crack Guidelines; another may not. This kind of 

sentencing-judge-to-sentencing-judge disparity cannot be our 

concern as an appellate court, at least so long as the sentence 

in a particular case is generally reasonable and the sentencing 

court has met its procedural obligations.4

 For defendants, this 

new world means their sentences will sometimes be shorter 

than under the old mandatory Guidelines system and 

sometimes longer (as in this case). Sentencing inevitably will 

be less predictable. Whether a sentence will be within, 

shorter than, or longer than the Guidelines range for any given 

defendant will depend largely on one primary factor: which 

district judge is assigned to the case. 

 4

 However it came about, the system now is one of advisory 

Guidelines where district judges must “explain their sentencing 

decisions on the record, with the availability of appellate review 

under an abuse-of-discretion standard” – just as Professor Stith and 

Judge Cabranes proposed a decade ago as a policy matter. KATE 

STITH & JOSÉ A. CABRANES, FEAR OF JUDGING 172 (1998).
13 

To be sure, the sentencing-judge-to-sentencing-judge 

disparities that may develop under this Booker-RitaKimbrough-Gall regime are cause for serious concern. See 

Gall v. United States, 128 S. Ct. 586, 604-05 (2007) (Alito, J., 

dissenting). But as I understand the state of the case law, that 

concern must be addressed by Congress. For example, 

Congress could decide to make the Guidelines mandatory 

again, with the jury finding key sentencing facts so as to avoid 

the Sixth Amendment problem the Supreme Court found in 

Booker. In the meantime, I believe we are constrained by 

Booker, Rita, Kimbrough, and Gall to exercise very 

deferential substantive review of sentencing decisions. Along 

the same lines, the Supreme Court’s decisions counsel that 

our procedural review not become a backdoor way of 

effectively mandating within-Guidelines sentences. 

* * * 

 On remand, I expect that the District Court will simply 

state (actually, re-state) its findings that the defendant 

repeatedly violated the conditions of release and is not 

amenable to supervised release; explicitly invoke Application 

Note 4 to Guidelines § 7B1.4; say the facts warrant revocation 

and an upward departure or variance to 18 months; and issue 

a written order. Because I believe the District Court has 

already provided the explanation that the Supreme Court in 

Gall required – and indeed has already provided the 

explanation that the majority opinion seems to require – I 

respectfully dissent.