*

 The Honorable R. Leon Jordan, Senior United States District Judge for the Eastern District of Tennessee,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0284p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

AVERY VINSON POYNTER,

Defendant-Appellant.

X

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-

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-

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,

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N

No. 05-6508

Appeal from the United States District Court

for the Eastern District of Kentucky at Lexington.

No. 05-00023—Jennifer B. Coffman, District Judge.

Argued: April 4, 2007

Decided and Filed: July 26, 2007 

Before: SILER and SUTTON, Circuit Judges; JORDAN, District Judge.*

_________________

COUNSEL

ARGUED: Jerry W. Gilbert, COY, GILBERT & GILBERT, Richmond, Kentucky, for Appellant.

John Patrick Grant, ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for

Appellee. ON BRIEF: Jerry W. Gilbert, COY, GILBERT & GILBERT, Richmond, Kentucky, for

Appellant. Charles P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY, Lexington,

Kentucky, for Appellee.

SUTTON, J., delivered the opinion of the court, in which JORDAN, D. J., joined. SILER,

J. (p. 10), delivered a separate dissenting opinion.

_________________

OPINION _________________

SUTTON, Circuit Judge. Avery Poynter, 36 years old, pleaded guilty to traveling in

interstate commerce for the purpose of engaging in illicit sexual conduct with two minors. After

calculating a guidelines range of 188–235 months and considering the § 3553(a) factors, the district

court imposed a 720-month sentence (the statutory maximum) because Poynter was a repeat child

sex offender. Unable to conclude that this variance resulted from a reasonable application of § 3553,

we reverse.

1
No. 05-6508 United States v. Poynter Page 2

I.

On May 4, 1989, Avery Poynter pleaded guilty in Kentucky state court to committing four

counts of sodomy in the second degree with an eleven-year-old male. The court sentenced Poynter

to a 20-year term of imprisonment, but the State released him on parole four years later after he

completed Kentucky’s sex offender treatment program in prison.

In October 2003, Poynter traveled from Kentucky to Tennessee to have sex with a fourteenyear-old male. In December, he met the same minor in Indiana and, after the two traveled to

Kentucky, they again had a sexual encounter. In April 2004, Poynter traveled to Indiana with

another fourteen-year-old male for another sexual foray. The next month, the two traveled to Florida

for the same purpose.

After the police caught Poynter, he pleaded guilty to four counts of traveling in interstate

commerce for the purpose of engaging in illicit sexual conduct with a minor. 18 U.S.C. § 2423(b).

Accounting for adjustments based on his supervisory control over the victims, U.S.S.G.

§ 2A3.2(b)(2)(B), and on his multiple counts of conviction, id. § 3D1.4, the district court set

Poynter’s initial offense level at 28 and his criminal history category at III, creating a guidelines

range of 97–121 months. Because Poynter was convicted of a sex crime and had previously

“sustain[ed] at least one sex offense conviction,” the district court applied the mandatory minimums

of the “Repeat and Dangerous Sex Offender Against Minors” sentencing guideline. U.S.S.G.

§ 4B1.5(a). The district court therefore increased Poynter’s final offense level to 32 (including a

two-level adjustment for acceptance of responsibility), see id. § 4B1.5(a)(1)(B)(ii), and increased

his criminal history to category V, see id. § 4B1.5(a)(2). All of these adjustments considered,

Poynter was left with a guidelines range of 188–235 months.

At the sentencing hearing on August 18, 2005, the district court heard testimony from

Poynter’s victims and from the mother of the second victim. The district court acknowledged

receiving a letter from Poynter’s parents, and Poynter spoke on his own behalf. Poynter

“apologize[d] to [his] victims, as well as [his] family”; he recognized that “this has been a problem

for [him] for many years” and that he had already gone “back into counseling with the counselors”;

he welcomed “anything that [the] Federal [Government] has to offer”; and he said that he did not

“intend” to “ever hav[e] another victim.” JA 41–42.

In sentencing Poynter, the district court acknowledged the guidelines range of 188–235

months and the statutory maximum of 720 months. See 18 U.S.C. §§ 2423(b), 2426(a). The court

recognized that it must “impose a sentence . . . that is sufficient but not greater than necessary to

comply with the purposes” of 18 U.S.C. § 3353(a)(2). JA 46. It then analyzed the § 3553(a) factors

in exercising its independent judgment about what an appropriate sentence would be. Reflecting

on the “seriousness of the offense,” see § 3553(a)(2)(A), the court said that “[t]he protection of

children in our society deserves the highest priority,” JA 46, and observed that Poynter “used

alcohol and other drugs to seduce these victims” and that he had “victimized multiple children,” JA

49; see § 3553(a)(1). Reflecting on the need to impose a “just punishment” and “to promote respect

for the law,” see § 3553(a)(2)(A), the court focused on Poynter’s criminal history: “You did do it

once before. . . . You did not learn your lesson. And so I think that the just punishment component

of this has been ratcheted upwards.” JA 46; see § 3553(a)(1). Consistent with the need to “protect

the public from further crimes,” see § 3553(a)(2)(C), the district court stated that “[t]he only way

I can be sure that [children] are protected is for [Poynter] to be in custody.” JA 47.

As for rehabilitation, see § 3553(a)(2)(D), the court said that Poynter should participate in

the federal sex offender treatment program but doubted that Poynter would ever recover because sex

crimes are “highly recidivistic.” JA 49. The court also noted that the “statutory maximum”

protected against “unwarranted sentencing disparities,” JA 47; see § 3553(a)(6), and that “[t]here
No. 05-6508 United States v. Poynter Page 3

is no restitution that [Poynter] can pay to these victims that can make them whole,” JA 47; see

§ 3553(a)(7).

In choosing the statutory maximum (720 months or 60 years), the court emphasized the need

for “adequate deterrence,” see § 3553(a)(2)(B), explaining that sex crimes are “highly recidivistic,”

that Poynter “forgot the lessons [he] learned in counseling,” that “[o]ne slip is one too many” and

that the harm here is so great that it “outweighs in the Court’s judgment [Poynter’s] ten-year

compliance.” JA 48. The court added that it was “aware of the guideline range top—capping out

at 235 months,” see § 3553(a)(4)—but that it had “chosen the statutory maximum because [it]

believe[d] that Mr. Poynter is unsafe to children” as a repeat offender. JA 52. “It is my intention,”

the court concluded, “that he either not ever be released from prison or be released from prison at

such an age that it would be highly unlikely that he will ever commit this offense again. If he can’t

control himself, I think the Court needs to impose a sentence that will control him.” JA 52–53. The

court also imposed a lifetime term of supervised release.

II.

Since United States v. Booker, 543 U.S. 220 (2005), we have distinguished between

procedural and substantive reasonableness. See United States v. Webb, 403 F.3d 373, 383 (6th Cir.

2005). No one questions the district court’s adherence to the procedural requirements of postBooker review: It properly calculated the guidelines range, recognized that those guidelines were

advisory and thoroughly considered the factors listed in § 3553(a). See United States v. Davis, 458

F.3d 491, 495 (6th Cir. 2006). The court also stated “the specific reason for the imposition of a

sentence” outside the guidelines range, 18 U.S.C. § 3553(c)(2)—“that [Poynter] either not ever be

released from prison or be released from prison at such an age that it would be highly unlikely that

he will ever commit this offense again.” JA 52.

The substantive reasonableness of this sentence is another matter—a point that Poynter not

only contests but contests with some force. In asking whether a sentence reasonably comports with

the substantive demands of § 3553, we face a tug of war between two competing sets of

considerations. On one side, we face several limitations in second-guessing the district court’s

decision. Unlike the trial court, we did not see the defendant, the victims or family members testify

at the sentencing hearing. And unlike the trial court, most appellate judges have little experience

sentencing individuals. While trial judges sentence individuals face to face for a living, we review

transcripts for a living. No one sentences transcripts. All of this suggests that we should

acknowledge the trial courts’ comparative advantages—its ring-side perspective on the sentencing

hearing and its experience over time in sentencing other individuals—and give considerable

deference to their sentencing decisions. See Rita v. United States, 127 S. Ct. 2456, 2469 (2007)

(“The sentencing judge has access to, and greater familiarity with, the individual case and the

individual defendant before him than the Commission or the appeals court.”); Koon v. United States, 518 U.S. 81, 98 (1996) (“District courts have an institutional advantage over appellate courts in

making [sentencing] determinations, especially as they see so many more Guidelines cases than

appellate courts do.”).

On the other side, one of the principal functions of the Sentencing Reform Act of 1984 was

to eliminate “unwarranted sentenc[ing] disparities among defendants with similar records who have

been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). District court judges cannot correct

that problem within their circuit or even within their own court (so long as two or more judges sit

there), much less nationwide, because “different judges (and others) can differ as to how best to

reconcile the disparate ends of punishment.” Rita, 127 S. Ct. at 2464. Reasonableness review thus

permits “appellate courts to minimize sentencing disparities between and among district courts (and

between and among courts of appeals),” Davis, 458 F.3d at 495, or, to use the words of Booker, to

“iron out sentencing differences” among trial judges, Booker, 543 U.S. at 263; see also United States
No. 05-6508 United States v. Poynter Page 4

v. Sriram, 482 F.3d 956, 962 (7th Cir. 2007) (“[Booker] did not authorize sentencing judges to pick

any sentence within the applicable statutory sentencing range that strikes their fancy.”).

In trying to account for these competing considerations and in trying to identify principled

reasons for upholding some sentences but not others, our circuit has applied a proportionality

principle based on at least two of the § 3553(a) factors—the guidelines range, § 3553(a)(4), and the

need to avoid unwarranted sentencing disparities, § 3553(a)(6). “[T]he farther the judge’s sentence

departs from the guidelines sentence,” we have said, “the more compelling the justification based

on factors in section 3553(a) must be.” Davis, 458 F.3d at 496 (internal quotation marks omitted).

Many other circuits have done the same or something nearly the same. See United States v. Crisp, 454 F.3d 1285, 1291 (11th Cir. 2006); United States v. Cage, 451 F.3d 585, 594 (10th Cir. 2006);

United States v. Smith, 445 F.3d 1, 4 (1st Cir. 2006); United States v. Duhon, 440 F.3d 711, 715 (5th

Cir. 2006); United States v. Lazenby, 439 F.3d 928, 932 (8th Cir. 2006); United States v. Moreland, 437 F.3d 424, 434 (4th Cir. 2006); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005); cf.

United States v. King, 454 F.3d 187, 195 (3d Cir. 2006); United States v. Simpson, 430 F.3d 1177,

1187 n.10 (D.C. Cir. 2005).

We have applied this principle in several cases over the last year—both to downward and

upward variances. Compare, e.g., United States v. Kathman, No. 06-5669, __ F.3d ___, 2007 WL

1754492, at *5–6 (6th Cir. June 20, 2007) (upholding 61% downward variance based on assessment

that defendant was “a law abiding fine young man” who merely used “poor judgment” one evening

and was less culpable than similar defendants) (internal quotation marks omitted); United States v.

Cherry, 487 F.3d 366, 370–72 (6th Cir. 2007) (upholding 43% downward variance because

defendant had a “low risk for reoffending,” had taken “extensive” efforts to rehabilitate himself and

was not “a run-of-the-mill offender”); United States v. Husein, 478 F.3d 318, 333 (6th Cir. 2007)

(upholding 99.91% downward variance as reasonable in light of defendant’s “extraordinary family

circumstances”); United States v. Wells, 473 F.3d 640, 644 (6th Cir. 2007) (upholding 14% upward

variance based on defendant’s “egregious actions” and “lengthy history of escalating violent

behavior”); United States v. Collington, 461 F.3d 805, 809–10 (6th Cir. 2006) (upholding 36%

downward variance as reasonable in light of defendant’s peculiar criminal history and unique family

circumstances); United States v. Fuson, 215 F. App’x 468, 475 (6th Cir. Feb. 8, 2007) (upholding

sentence of probation rather than two years’ imprisonment because felon-in-possession charge arose

from incidental possession of an antique handgun); United States v. Williams, 214 F. App’x 552, 556

(6th Cir. Jan. 23, 2007) (upholding 177% upward variance because sentencing range

underrepresented defendant’s “continuing propensity for violence”), with United States v. Borho, 485 F.3d 904, 916 (6th Cir. 2007) (vacating 66% downward variance because “the extreme nature

of the deviation, without a correspondingly compelling justification, resulted in a substantively

unreasonable sentence”) (emphasis omitted); United States v. Funk, 477 F.3d 421, 431 (6th Cir.

2007) (vacating 43% downward variance when district court unduly discounted defendant’s criminal

history); Davis, 458 F.3d at 499–500 (vacating 99.89% downward variance because “most extreme

variance” “leav[es] no room to make reasoned distinctions” between defendant and other “more

worthy defendants”).

Gauged by this proportionality principle and by our application of it in these cases, this 60-

year sentence, a 206% upward variance from the top of the guidelines range, cannot be sustained.

The primary ground for the variance—that the court wanted to prevent Poynter from ever

committing this crime again—does not distinguish Poynter from other repeat sex offenders. True

enough: “Poynter is unsafe to children,” JA 52; “[o]ne slip is one too many,” JA 48; his crime is

“highly recidivistic,” id.; and “[i]f [Poynter] can’t control himself, . . . the Court needs to impose a

sentence that will control him,” JA 52–53. But, at this level of generality, the same could be said

of all repeat sex offenders.
No. 05-6508 United States v. Poynter Page 5

No less importantly, the Sentencing Commission promulgated the “Repeat and Dangerous

Sex Offender Against Minors” guideline precisely to address the problem of recidivist sex offenders.

Designed to deal with individuals who previously have sustained “at least one sex offense

conviction,” U.S.S.G. § 4B1.5(a), and who have exhibited a “pattern of activity involving prohibited

sexual conduct,” id. § 4B1.5(b), the guideline recommends “lengthy incarceration for offenders who

commit sex offenses against minors and who present a continuing danger to the public.” Id. § 4B1.5

cmt. background. The guideline protects the public from this “continuing danger” by calling for a

“lengthy incarceration” for these individuals—one that significantly bumps up the sentencing range

for any sex offender who has committed at least one sex offense before.

In view of his offense and of this guideline, Poynter faced the following enhancements. The

underlying crime, together with other adjustments for criminal history, acceptance of responsibility

and the like, called for an advisory sentencing range of 97–121 months. The “Repeat and Dangerous

Sex Offender Against Minors” guideline increased that range to 188–235 months. And the district

court sentenced Poynter to 720 months. What started as a top-end range of roughly 10 years became

a top-end range of roughly 20 years and ended as a 60-year sentence—all because he had been

convicted once before as a sex offender and all of this even though the increase in the advisory range

from roughly 10 to 20 years was meant to account for the problem of recidivism. Absent some

explanation for why Poynter’s risk of recidivism differs from that of other repeat sex offenders, we

are hard-pressed to understand why Poynter, but apparently not other repeat offenders, needs what

amounts to a life sentence—Poynter will be 96 when (or if) he is released from prison.

The other aspects of Poynter’s crimes mentioned by the district court—his multiple counts

of conviction, his relationship of trust with the victims, the fact that prior treatment did not prevent

these crimes—may well justify an upward variance (even a significant upward variance) but they

do not support a 60-year sentence. In explaining why it sentenced Poynter at the top of the statutory

range, the district court did not rely on these factors, and it did not explain why a sentence of 60

years was “no greater than necessary” despite the Sentencing Commission’s considered judgment

to the contrary—a judgment the government does not contend is generally “unsound” as to repeat

offenders, cf. Rita, 127 S. Ct. at 2468.

 By relying on a problem common to all repeat sex offenders (recidivism) in increasing

Poynter’s sentence and by failing to offer meaningful distinctions between the risk that Poynter

posed to the public and the risk that other sex offenders posed to the public, the district court left us

little room to distinguish between Poynter and other sex offenders. See Husein, 478 F.3d at 334

(affirming substantial variance and noting that “more worthy defendants than Husein are difficult

to imagine, short of those found to be not guilty”) (internal quotation marks omitted); accord Davis, 458 F.3d at 499; United States v. Goldberg, __ F.3d ___, No. 07-1393, 2007 WL 1827645, at *5 (7th

Cir. June 27, 2007); United States v. Moreland, 437 F.3d 424, 437 (4th Cir. 2006); United States v.

Haack, 403 F.3d 997, 1005–06 (8th Cir. 2005). As utterly depraved as this crime is and as forever

scarring as it must be to be victimized by it, not all repeat sex offenders deserve what amounts to

a life sentence; otherwise, Congress would not have set a statutory range of 0–60 years. See 18

U.S.C. §§ 2423(b), 2426(a). While there is no yardstick perfectly calibrated to measure one crime

and one criminal from the next crime and the next criminal, there are certainly measurable

differences between Poynter’s situation and the situation of offenders who might warrant the

statutory maximum or something approaching it. Consider those who, unlike Poynter, flee the

authorities and seek to obstruct their own conviction; those who do not accept responsibility for their

actions; those who employ violence or use weapons to commit the offense; and those who stand

convicted of a long list of prior sex offenses with children rather than just one prior conviction. Cf.

United States v. Bridgewater, 479 F.3d 439, 440–42 (6th Cir. 2007) (affirming 10-year, statutorymaximum sentence for possessing child pornography in part because defendant was more culpable

and dangerous than the average offender: the defendant took “photographs of [himself] molesting

young girls who were in [his] care” while running a home for abused and neglected children; he
No. 05-6508 United States v. Poynter Page 6

successfully concealed these offenses and his criminal past from others “despite [his] continued

proximity to youth in church programs”; and his own son “condemned” him and “questioned his

remorse and sincerity” in a letter to the court).

Neither can we agree with the district court that its invocation of the 60-year statutory

maximum by itself answers § 3553(a)’s concern about “avoid[ing] unwarranted sentence

disparities.” 18 U.S.C. § 3553(a)(6); see JA 47 (“I think that the statutory maximum . . . take[s] care

of [avoiding unwarranted sentence disparities].”). While the statutory maximum eliminates any risk

of disparity caused by sentences above 60 years, that maximum does little to diminish disparities

for individuals who receive (or should receive) sentences below what amounts to a life sentence for

most individuals convicted of this crime. If Poynter’s sentence represents a reasonable application

of § 3553(a), it is difficult to understand why any sentence between 188 and 720 months, a nearly

45-year span, would not be reasonable as well. But giving district courts such a sweeping range of

discretion does not seem to have been the goal of Booker, much less the continuing goal of the

Sentencing Commission. See Booker, 543 U.S. at 253 (“Congress’ basic goal in passing the

Sentencing Act was to move the sentencing system in the direction of increased uniformity.”); 28

U.S.C. § 991(b)(1)(B) (One purpose of the Commission is to “avoid[] unwarranted sentencing

disparities among defendants with similar records who have been found guilty of similar criminal

conduct.”); id. § 994(f) (instructing the Commission that the guidelines should particularly attempt

to “reduc[e] unwarranted sentence disparities”); see also 18 U.S.C. § 3553(a)(6).

While Booker empowered district courts, not appellate courts and not the Sentencing

Commission, the only way to “avoid unwarranted sentence disparities” is for appellate courts to

preserve reasoned distinctions among offenders. In attempting to satisfy the worthy goal of “be[ing]

sure that [children] are protected” from sex offenses, we thus do not have available the solution

adopted by the district court of simply placing the offender in permanent custody, JA 47, a solution

that sweeps all repeat sex offenders within its net. Not only does the 0–60 year range suggest that

Congress thought that courts should draw distinctions among sex offenders, but incarceration also

is not the sole method Congress prescribed for protecting the public in this area. Life-time

supervised release—authorized by Congress, 18 U.S.C. § 3583(k), recommended by the Sentencing

Commission, U.S.S.G. § 5D1.2(b), and adopted by the district court, see JA 50—remains an option.

Supervised release permits the district court to prohibit Poynter from “associating unnecessarily

with” children, 18 U.S.C. § 3563(b)(6), from volunteering as a youth leader, from becoming a

teacher or engaging in any other profession that might place him in a position of trust with children,

id. § 3563(b)(5), and from residing near any school, church or day-care center, id. § 3563(b)(13),

among other things. See id. § 3583(d).

All of these considerations are for the district court to ponder in the first instance. It is not

for us to impose a sentence. It is for us only to say that the justifications offered for this sentence

do not support it and do not meaningfully distinguish Poynter from other repeat sex offenders. See

Davis, 458 F.3d at 500.

That leaves one issue: Does the Supreme Court’s recent decision in Rita v. United States

require us to abandon the proportionality principle that we have applied in this case? The answer

would seem to be “no,” on the one hand, because Rita concerned the presumption of reasonableness

for within-guidelines sentences, not the proportionality principle, and the Court will consider the

validity of proportionality review during its next Term. See United States v. Gall, No. 06-7949.

Yet, at the same time, the Court said two things in upholding the presumption of reasonableness that

are in some tension with proportionality review: (1) there is no “presumption of unreasonableness”

for outside-guidelines sentences, Rita, 127 S. Ct. at 2467; and (2) the legitimacy of an appellate

presumption of reasonableness for within-guidelines sentences turns in part on the “double

determination” that “both the sentencing judge and the Sentencing Commission . . . reached the

same conclusion as to the proper sentence in the particular case,” id. at 2463.
No. 05-6508 United States v. Poynter Page 7

If, as Rita says, there is no presumption of unreasonableness for outside-guidelines sentences,

that suggests a district court has no less discretion to sentence within the guidelines than to sentence

outside of them. And if that is so, why should a sentencing court have any greater duty to justify

a within-guidelines sentence than an outside-guidelines sentence, much less to strengthen the

explanation for its sentence the further the sentence varies from the guidelines’ recommendation?

Likewise, if an appellate presumption of reasonableness for within-guidelines sentences turns at

least in part on the alignment of the views of the Sentencing Commission with the views of the

sentencing court, why should appellate courts give force to the Commission’s recommendations

through proportionality review when no such “double determination” exists, when in other words

the sentencing judge chose not to follow the Commission’s advice?

These are good questions, but they do not compel us to abandon the proportionality principle.

First, that is not all Rita said, and the rest of its reasoning remains consistent with permitting courts

to engage in some form of proportionality review. In upholding a presumption of reasonableness

for within-guidelines sentences, the Court also reasoned that Congress directed the Sentencing

Commission to develop sentencing recommendations based on the same § 3553(a) considerations

that district courts must consider in sentencing an individual. Id. at 2463–64. And it explained that

the guidelines’ recommendations are based on “empirical” data reflecting the aggregate experiences

of sentencing judges across the country and the input of diverse members of the “law enforcement

community.” Id. at 2464. If, in a given case, a sentencing court comes to a substantially (more on

that adverb later) different conclusion from the Commission about an appropriate sentencing range,

it seems quite reasonable to expect the court’s explanation to be commensurate with its variance

from the Commission’s empirically grounded and expert advice about how to apply the same

§ 3553(a) factors to a given crime and a given criminal.

Second, it is not proportionality review, but a congressional directive, that initially requires

district courts to treat the explanations they give for outside-guidelines sentences differently from

the explanations they give for within-guidelines sentences. While Congress requires sentencing

courts to give a statement of reasons for all sentences, it requires courts to give “the specific reason

for the imposition of a sentence different from” the guidelines-recommended sentence, 18 U.S.C.

§ 3553(c)(2) (emphasis added). If it is appropriate to ask sentencing courts to give the “specific

reason” for variances, but not within-guidelines sentences, it is a modest additional step—and

certainly an extra step that will be useful to the Sentencing Commission in formulating future

recommendations—to ask that those “specific reason[s]” have more force the further the court varies

from the recommended range.

Third, two of the § 3553(a) provisions that Congress requires district courts to

consider—(a)(4) and (a)(6)—suggest that courts must factor proportionality considerations into

outside-guidelines sentences. Subsection (a)(4) says a sentencing judge “shall consider” the

Sentencing Commission’s advice about how to sentence certain types of criminals for certain types

of crimes. When a court chooses not to follow that advice, the best way to indicate that the court

considered the guidelines range is not merely to say so—“I considered the guidelines range”—but

to show that is so by giving a “specific reason” that is commensurate with the degree of the variance.

A sentencing system that requires judges to consider the guidelines range and to give a “specific

reason” for deviating from that range, yet permits this reasoning to bear no relation to the size of the

variance, is not one destined to respect the Commission’s recommendations in the long run.

Any lingering doubt about the point ought to be relieved by subsection (a)(6), which

commands courts to “avoid unwarranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct.” What would an “unwarranted” sentencing disparity

be if not a sentence lacking sufficient justification for its disparity from the sentences of other

similarly situated defendants? How else can a district court judge, or for that matter an appellate

judge, tell when such disparities are occurring without consulting the guidelines range? And how
No. 05-6508 United States v. Poynter Page 8

else can judges avoid such disparities in the first instance, or correct them on review, without

demanding that substantial variances be supported by substantial reasons? There are several

questions here, and the practical answer to all of them is to allow courts to factor rough

proportionality into the equation.

Fourth, proportionality considerations do not forsake the other § 3553(a) factors—most

notably, the nature of the offense and of the defendant, id. § 3553(a)(1), and “the need for the

sentence,” id. § 3553(a)(2)(A)–(D). These are precisely the factors that district courts will invoke

in giving a “specific reason” for a variance. And in asking that this reasoning be particularly

forceful when the district court imposes a particularly large variance, the proportionality principle

merely respects the fact that Congress directed the Commission to consider these same factors in

recommending the sentencing ranges it did. To permit district courts to rely on these factors to vary

sentences substantially without asking them to give commensurate explanations is not to respect

subsections (a)(1) and (a)(2) but to exalt them—and in the process to make the avoidance of

unwarranted sentencing disparities all but impossible.

Fifth, this principle not only respects all of the § 3553(a) factors, but it also in the end is a

modest principle, one that is unlikely to make a difference in most cases. It is unlikely to affect the

review of sentences that vary slightly or even moderately from the Commission’s recommendations.

By its terms, a proportionality principle would ask little in the way of explanation for a sentence that

varies little from the guidelines. And the mandate of “avoid[ing] unwarranted sentence disparities,”

§ 3553(a)(6), will have little weight with modest or even moderate variances. The value of the

principle, and the only time it would seem to have an effect on the validity of a sentence, is when

the trial court varies substantially from the guidelines.

Sixth, with respect to substantial variances, the proportionality principle would seem to be

an indispensable tool of appellate review—if for no other reason than that there is no other

benchmark to measure the reasonableness of a sentence at the high or low ends of the sentencing

range authorized by Congress. Where else would an appellate court start in gauging the

reasonableness of such a sentence? We know that the sentencing court must start with the probation

department’s presentence report as to an appropriate guidelines’ sentencing range, and the court

must subject that report to the adversarial process. See Rita, 127 S. Ct. at 2465. We know that the

sentencing court may grant downward or upward departures to individuals deserving of them. See

U.S.S.G. § 5K2.0(a); Rita, 127 S. Ct. at 2461–62. And we know that, once the sentencing court

accounts for all of the § 3553(a) factors and comes to a reasoned judgment about their application

to a given individual, we must give the benefit of the doubt to the district court’s

judgment—conducting reasonableness review that comes to nothing more than abuse-of-discretion

review. Id. at 2465.

But reasonableness review still amounts to review, and without rough proportionality as an

available guide it is difficult to imagine how to conduct it in the setting of extreme variances. Take

our task in this case. Congress set a 0–60 year sentencing range for this offense, and the district

court gave Poynter a 60-year sentence. Without proportionality review, without the option of

measuring the force of the district court’s explanations for exceeding the roughly 20-year guidelinesrecommended sentence against the length of that variance, what principle would guide us? The

other § 3553(a) considerations, all important to be sure, tell us nothing by themselves about the types

of individuals that should be sentenced at the extreme ends of the congressional sentencing range.

They are qualitative guides, and without the quantitative recommendations of the Sentencing

Commission, appellate courts would have no principled way to distinguish one appealed sentence

from another. Neither district courts nor courts of appeals can use their own experiences in

determining appropriate sentences for, say, recidivist sex offenders because that would never

generate nationwide consistency. The Supreme Court perhaps could gather nationwide information

about sentencing ranges for different crimes, but that prospect, workable or not, seems unlikely to
No. 05-6508 United States v. Poynter Page 9

happen any time soon. As a practical matter, the most meaningful way for appellate courts to “iron

out sentencing differences,” Booker, 543 U.S. at 263, and to “avoid excessive sentencing disparities

while maintaining flexibility to individualize sentences where necessary,” id. at 264–65, is to permit

them to account for the strength of the sentencing court’s explanation in relation to the size of its

deviation from the guidelines.

By contrast, it is difficult to see any great risk of harm arising from applying the

proportionality principle to extreme variances. Again, take this case. The key reasonablenessreview question is why the same factors underlying the “Repeat and Dangerous Sex Offender

Against Minors” sentencing guideline, U.S.S.G. § 4B1.5(a), which increased Poynter’s guidelines

range from 97–121 months to 188–235 months, do not account for the same concerns that the district

court expressed in raising his sentence to 720 months. Everything the court said in imposing a 720-

month sentence could have been said about an individual sentenced within the 188–235 month

range. What is missing, in short, is additional reasoning, not additional factfinding. If an appellate

court may not ask a district court to explain why the most extreme variance available is

justified—justified in rough relation to the extent of the variance—it is difficult to see why appellate

courts would not be required to uphold all such variances. And if one takes the parsimony principle

seriously, what better way is there to ensure that a sentence is “sufficient” (in the context of a

proposed substantial downward variance) and “no greater than necessary” (in the context of a

proposed substantial upward variance) than to insist that the district courts explain such variances

from the Sentencing Commission’s recommendations—the only empirical guide to whether

sentences are “sufficient” and “no greater than necessary”?

III.

For these reasons, we vacate the sentence imposed below and remand the case to the district

court for resentencing.
No. 05-6508 United States v. Poynter Page 10

________________

DISSENT ________________

SILER, Circuit Judge, dissenting. I respectfully dissent, not because I think that my

colleagues do not know the law, but because this is such a discretionary matter that I believe when

the district court correctly calculates the Guidelines range and then considers the § 3553(a) factors,

the sentence should be upheld, unless the court adds a factor which should not have been considered

under § 3553(a) or unless the circumstances of the crime or the offender were such that no variance

from the Guidelines could be justified.

Obviously, the decision in United States v. Davis, 458 F.3d 491 (6th Cir. 2006), is the law

of this circuit. From that decision, we get the quotation which the majority uses in this case: “‘[T]he

farther the judge’s sentence departs from the guidelines sentence . . . the more compelling the

justification based on factors in Section 3553(a)’ must be.” Id. at 496 (quoting United States v.

Dean 414 F.3d 725, 729 (7th Cir. 2005)). In Davis, we found that a downward variance of 99.89%

was unreasonable under the circumstances. The primary circumstances used by the court in the

variance in Davis were the long time interval between his crimes and his sentence and the

defendant’s advanced age, 70 years old. 

Compared to the decision in Davis, we upheld a downward variance of 99.91% as reasonable

in light of extraordinary family circumstances in United States v. Husein, 478 F.3d 318, 333 (6th Cir.

2007). There we distinguished Davis by discussing the fact that the court should consider the

“worthiness” of each individual defendant. Id. at 333. Thus, Husein was a worthy defendant who

had no prior criminal history, was very remorseful, and had a difficult family situation at home. 

As the majority opinion recites, this case represents a 206% upward variance from the top

of the Guidelines range. However, to adopt the reasoning in Husein, Poynter here was a repeat sex

offender who is about as unworthy as any defendant can be. The district court was highly offended

by the fact that Poynter had previously been involved in sexual abuse with minors, that he gave

alcohol and other drugs to the children, and that he did not learn anything from his counseling after

the first offense. The district court saw the families of the victims and was no doubt distressed

because Poynter had continued in his prior conduct of sexually abusing juveniles. At the time of

these present offenses, he was on parole from his previous offenses of sodomy with a minor.

Although the upward variance in this case is double what the downward variance was in Husein, there is no set figure beyond which a sentencing court may vary, and Poynter here is as unworthy

as Husein was worthy of a downward variance. 

In United States v. Bridgewater, 479 F.3d 439 (6th Cir. 2007), we found that the maximum

sentence of 120 months for the defendant under a charge of possession of child pornography was

not substantively unreasonable. In Bridgewater, the district court considered the horrible nature of

the crime and emphasized the destructive effect the child pornography had on the lives of children.

The court opined that “it would not take a chance on him victimizing anybody else.” Id. at 442.

Although that decision does not indicate what the sentencing range was, still it shows that the court

could render a maximum statutory sentence to protect children. Therefore, I would find that in this

case, the district court did not abuse its discretion in rendering the sentence against Poynter. Thus,

I would affirm.