United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 1, 2011 Decided June 14, 2011

No. 10-3019

UNITED STATES OF AMERICA,

APPELLEE

v.

EHIGIATOR O. AKHIGBE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cr-00151-1)

Veronica Renzi Jennings argued the cause for appellant.

With her on the briefs were Lisa H. Schertler and David 

Schertler. 

Leslie Ann Gerardo, Assistant U.S. Attorney, argued the 

cause for appellee. With her on the brief were Ronald C. 

Machen Jr., U.S. Attorney, and Elizabeth Trosman, Assistant 

U.S. Attorney. Roy W. McLeese III, Assistant U.S. Attorney, 

entered an appearance.

Before: GINSBURG, TATEL, and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.
2

TATEL, Circuit Judge: Appellant, a primary care 

physician who served Medicaid patients in the District of 

Columbia, appeals his convictions for health care fraud and 

for making false statements relating to health care matters, as 

well as his 53-month sentence. Finding no merit in appellant’s

assertions of trial errors, we affirm the judgment of 

conviction. But because the district court gave an inadequate 

explanation for its above-Guidelines sentence and because

this procedural defect amounted to plain error, we vacate the 

sentence and remand.

I.

During the time period relevant to this case, the 

Amerigroup Corporation, a private insurance company, 

served as the Medicaid administrator for the District of 

Columbia. Appellant Ehigiator Akhigbe entered an agreement 

to join Amerigroup’s network of Medicaid providers as a 

primary care physician in December 2001.

To receive payments from Amerigroup for services 

provided to Medicaid patients, doctors submit claim forms—

which at the time relevant to this case were called “HCFA 

1500” forms or “HCFA” forms—on which they record their

patients’ identifying information, the dates of services, 

diagnosis information, and procedure codes specifying the 

type and level of service the physician provided (which in 

turn dictate the final charges). Although doctors have no 

obligation to personally fill out the forms, they must sign 

them and certify that the services not only were provided, but 

also were medically appropriate and necessary. Once 

Amerigroup receives and processes the forms, it sends

providers an explanation of payment and, if appropriate, a 

check.
3

During Akhigbe’s participation in Amerigroup’s 

network, the company began noticing unusual trends in his

claims, including billings for an abnormally large number of 

high-level visits, numerous claims for certain procedures that 

primary care physicians rarely perform, and repeated 

instances where visits following such procedures were billed 

as new diagnoses rather than as uncompensated follow-up 

visits. Prompted by these observations, Amerigroup launched

an investigation of Akhigbe’s practice and conducted an 

onsite audit in May 2004. Based on the sample of patient files 

audited, Amerigroup discovered that Akhigbe had 

documentation for only six percent of the services billed.

Several weeks later, the company terminated its provider 

agreement with Akhigbe.

The matter was then referred to the FBI. At the 

conclusion of the FBI investigation—which involved 

surveillance, interviews with several of Akhigbe’s patients

and employees, and the seizure of records from Akhigbe’s 

office—the government indicted Akhigbe on one count of 

health care fraud in violation of 18 U.S.C. § 1347 and 18

counts of knowingly and willfully making false statements in 

connection with the delivery of or payment for health care 

services in violation of 18 U.S.C. § 1035. In the health care 

fraud charge, the government alleged that over a period of 

several years, Akhigbe intentionally defrauded Amerigroup 

by submitting claims for visits and surgical procedures that 

never took place. The false statement charges related to 18

specific false HCFA claims, all submitted in June 2004. After 

dismissing one of the false statement counts, the government

proceeded to trial on the other claims.

At trial, the government supported its allegations with 

testimony from patients and employees that numerous visits 

and procedures for which Akhigbe had billed Amerigroup 
4

either never occurred or were misrepresented, as well as with 

evidence that he had created false progress report notes for 

patient files to cover up discrepancies. Over Akhigbe’s 

objection, the government also introduced documentation of 

HCFA claims dating back to December 2002 that Akhigbe 

had submitted to Amerigroup. It used this evidence to 

demonstrate that Akhigbe had billed for so-called impossible 

days—i.e., days where the sum of the claim forms indicated 

Akhigbe had worked more than 24 hours. To link Akhigbe to 

false HCFA forms, the government relied on testimony by

two former employees who claimed they could identify

Akhigbe’s handwriting on such forms. One of the former 

employees also testified that Akhigbe had told him that he did 

his own billing, although that employee never actually saw

the doctor complete HCFA forms.

For its part, the defense denied that Akhigbe intentionally 

committed fraud or knowingly made false statements, arguing

instead that any billing discrepancies were the result of

negligent oversight. Defense counsel claimed that because 

Akhigbe had a busy medical practice, he delegated billing 

responsibilities to others who may have recorded false 

information. Although Akhigbe never testified, the defense 

did call two individuals who said they worked for the doctor.

Both witnesses claimed they never saw Akhigbe fill out 

HCFA forms or otherwise involve himself with billing. They 

testified that Akhigbe relied on an employee named Ibrahim 

Mohammad to carry out such administrative tasks. According 

to those witnesses, Mohammad died of cancer in 2007.

Based on its mismanagement defense, Akhigbe’s counsel 

asked the district court to provide a “good faith” instruction to 

the jury, which would have explained that good faith by 

Akhigbe constituted a complete defense to the charged 

offenses and that evidence proving only that he made “a 
5

mistake in judgment or an error in management” could not

establish fraudulent intent. Although declining to give that

instruction, the district court did instruct the jury that the 

government had to prove beyond a reasonable doubt that 

Akhigbe defrauded a health care benefit program knowingly 

and willfully and that he knowingly made false statements in 

connection with such a program.

The jury convicted Akhigbe of the healthcare fraud 

charge and all but one of the false statement charges. At the 

sentencing hearing, Akhigbe and the government agreed that 

the applicable advisory Guidelines range was 33 to 41 

months’ imprisonment, and each argued for a withinGuidelines sentence—albeit at opposite ends of the range.

The district court, however, sentenced Akhigbe to 53 months’ 

imprisonment—an upward variance of 12 months.

On appeal, Akhgibe urges us to vacate his conviction, 

arguing that the district court committed evidentiary errors 

and improperly refused to give the good faith instruction he 

requested. Akhigbe also contends that we should vacate his 

sentence as procedurally unreasonable.

II.

Akhigbe first argues that the district court erred by 

admitting evidence of false HCFA claim submissions that 

predated the 17 remaining specific false statements from June

2004 charged in the indictment. According to Akhigbe, the 

district court should have excluded this evidence under 

Federal Rule of Evidence 403 because although the past 

claims were relevant to proving health care fraud, such 

evidence was cumulative given the government’s ability to 

rely exclusively on evidence regarding the specific false 

statements. Admitting evidence concerning prior HCFA 

submissions, he asserts, risked confusion and prejudice 
6

because it could have led the jury to convict Akhigbe for 

making false statements based on evidence that he made 

similar false statements in the past. In addition, Akhigbe 

faults the district court for failing to explain its Rule 403 

balancing on the record.

We see no abuse of discretion in the district court’s 

admission of evidence relating to false claims submitted 

before June 2004. See Henderson v. George Washington 

Univ., 449 F.3d 127, 132–33 (D.C. Cir. 2006) (describing the

standard of review for Rule 403 challenges). Moreover,

although the district court never expressly weighed the 

prejudicial effect of the evidence against its probative value, 

“reversal or remand for failure to make such a balancing on 

the record is inappropriate” because “the considerations 

germane to balancing probative value versus prejudicial effect 

are readily apparent from the record.” United States v. 

Manner, 887 F.2d 317, 322 (D.C. Cir. 1989) (internal 

quotation marks omitted). As the district court explained in 

ruling on Akhigbe’s pretrial motion to exclude, the contested

evidence was “highly probative on the issue of the existence 

of a scheme to defraud.” Mem. & Order at 7, United States v. 

Akhigbe, No. 1:09-cr-00151-1 (D.D.C. Dec. 2, 2009), ECF 

No. 27 (included at J.A. 61). Specifically, the evidence

allowed the government to establish a pattern of false claim 

submissions spanning the full period of the charged health 

care fraud, as well as to show that Akhigbe had billed for 

impossible days. Akhigbe contends that the probative value of 

this evidence was greatly diminished because the government 

had “evidentiary alternatives.” Old Chief v. United States, 519 

U.S. 172, 184 (1997). But the “mere showing of some 

alternative means of proof” does not necessarily indicate an 

abuse of discretion. Id. at 183 n.7. In any event, evidence 

relating to discrete false statements from a single month in 

2004 was hardly equivalent in probative value to the evidence 
7

Akhigbe sought to exclude. Balanced against its probative 

value, the risk that this earlier evidence of false HCFA 

submissions confused and prejudiced the jury with respect to 

the separate and discrete false statement charges seems

minimal, particularly given that the district court instructed

the jury that it could not consider this evidence for any 

purpose other than to decide whether Akhigbe was guilty of 

health care fraud. See United States v. Douglas, 482 F.3d 591, 

601 (D.C. Cir. 2007) (explaining how jury instructions 

concerning the permissible and impermissible uses of 

evidence may decrease the risk of prejudice from the 

admission of prior bad act evidence).

Reduced to its core, Akhigbe’s argument is that Rule 403 

precluded the government from introducing highly probative 

direct evidence that he engaged in healthcare fraud over a 

several year period because the government also charged

Akhigbe with making specific false statements during one 

month within that period. Given the implausibility of that 

Rule 403 argument, we have no trouble affirming the district 

court’s admission of this evidence even absent express on-therecord balancing.

Next, Akhigbe contends that the district court improperly 

prevented him from introducing testimony by his former 

counsel, Jacob Stein, who, apparently to bolster Akhigbe’s 

good faith defense, would have testified about his efforts to 

clear up whether Akhigbe owed money to Amerigroup after 

their contractual relationship ended. Akhigbe claims this 

evidentiary ruling violated his Fifth and Sixth Amendment 

right to call favorable witnesses. Although we normally 

review constitutional questions de novo, see United States v. 

Young, 107 F.3d 903, 910 (D.C. Cir. 1997), the 

misapplication of established evidentiary rules gives rise to a 

constitutional violation only in “rare” cases where “the error 
8

deprives a defendant of a fair trial,” United States v. Lathern, 

488 F.3d 1043, 1046 (D.C. Cir. 2007). Because Akhigbe has 

come nowhere close to showing that the error he asserts rises

to that level, we apply ordinary abuse of discretion review.

See id.

Akhigbe insists there was a nonhearsay purpose for 

Stein’s planned testimony about a conversation he had with 

an unidentified individual at Amerigroup who allegedly 

assured Stein that the letter the company sent Akhigbe

concerning his negative balance was “a mistake.” But the 

record demonstrates that Akhigbe actually sought to introduce 

this out-of-court statement for the truth of the matter asserted.

See Fed. R. Evid. 801(c) (defining hearsay). Responding to 

the government’s objection to Stein’s proposed testimony, 

Akhigbe’s counsel pointed out that a government witness 

testified about Akhigbe’s outstanding debt to Amerigroup, 

leading counsel to ask the district court, “Your Honor, how 

does the court intend for me to dispute the evidence as laid 

out there now . . . that he still owes it?” Trial Tr. at 78 (Dec. 

14, 2009). Stein’s testimony, Akhigbe’s counsel indicated,

was “the only way [he could] get in evidence . . . that 

[Akhigbe] did not owe that money.” Id. at 79. Using Stein’s 

testimony about what an Amerigroup representative told him

to show that Akhigbe owed no money would have been 

classic hearsay not covered by any authorized exception. See 

Fed. R. Evid. 802; Muldrow ex rel. Estate of Muldrow v. ReDirect, Inc., 493 F.3d 160, 167 (D.C. Cir. 2007).

Akhigbe argues that the proposed testimony was relevant 

to establishing his state of mind because it showed that he 

acted diligently upon receiving the letter from Amerigroup 

and that he reasonably believed the matter was resolved after

Stein’s conversation with the company. Under such a theory,

Akhigbe contends, the testimony would have been relevant 
9

regardless of whether he really did owe Amerigroup money

because it would have helped to bolster his good faith

defense. But by assuring the district court that Stein would 

refrain from discussing any attorney-client conversations to 

avoid opening the door to privileged communications, 

Akhigbe ruled out that nonhearsay purpose. Given this selfimposed limitation, and absent other evidence concerning

what Stein told Akhigbe about his conversation with 

Amerigroup, we see no error in the district court’s conclusion

that Akhigbe lacked any relevant nonhearsay use for Stein’s 

testimony.

This brings us finally to Akhigbe’s argument that the 

district court erred by refusing to give the good faith 

instruction he requested. A defendant is entitled to a requested 

theory-of-defense instruction if the record contains “sufficient 

evidence from which a reasonable jury could find” for the 

defendant on his theory. United States v. Glover, 153 F.3d 

749, 754 (D.C. Cir. 1998) (internal quotation marks omitted).

Such evidence may be direct or circumstantial. See United 

States v. Hurt, 527 F.3d 1347, 1351 (D.C. Cir. 2008) 

(concluding that the defendant was entitled to a good faith 

instruction even though he had declined to testify because 

circumstantial evidence permitted a reasonable jury to find

that he had acted in good faith). In reviewing de novo a 

challenge to the district court’s refusal to give a requested 

instruction, we “view[] the instructions as a whole,” United 

States v. Gambler, 662 F.2d 834, 837 (D.C. Cir. 1981), and 

reverse only where the court failed to convey adequately to 

the jury “the substance of [a] requested instruction” to which 

the defendant was entitled, Hurt, 527 F.3d at 1351.

Here, we have no need to decide whether the district 

court should have given the requested good faith instruction 

based on the two defense witnesses’ testimony that Akhigbe 
10

relied on others to prepare HCFA forms because the court 

adequately conveyed the substance of that instruction in its 

explanation of the state of mind elements of the charged 

offenses. The district court instructed the jury that to convict 

Akhigbe of health care fraud, it had to find beyond a 

reasonable doubt that he

engaged in the scheme knowingly and willfully, and 

that is with the intent to defraud. The term 

knowingly means that the act was done voluntarily 

and not because of mistake or accident. . . . The term 

willfully means that the defendant knew his conduct 

was unlawful and intended to do something that the 

law forbids. That is to find the defendant acted 

willfully you must find that the evidence proved 

beyond a reasonable doubt that he acted with a 

purpose to disobey or disregard the law.

Trial Tr. at 39 (Dec. 16, 2009) (emphasis added). The court 

explained that the false statement charges had the same 

knowledge requirement, which the government also had to 

establish beyond a reasonable doubt. Id. at 43. These

instructions “substantially covered the same ground” as the 

good faith instruction Akhigbe sought, Hurt, 527 F.3d at 

1352, because they made clear to the jury that if it believed 

Akhigbe’s argument and concluded that he submitted false 

claims to Amerigroup due to mere negligence, then it had to 

acquit.

Akhigbe nonetheless argues that the instructions were 

inadequate because they nowhere “addressed explicitly [his] 

defense that he had a good faith but mistaken belief that the 

HCFA claims were being submitted accurately by his medical 

practice.” Appellant’s Reply Br. 17. But the instruction he 

proposed was also fairly general, stating that “[e]vidence 
11

which establishes only that a person made a mistake in 

judgment or an error in management, or was careless, does 

not establish fraudulent intent.” To be sure, the district court’s 

instruction, although stressing that the jury was to convict 

only if it found intentional wrongdoing as opposed to 

mistakes or accidents, never used the phrase “error in 

management,” but that provides no reason to believe the jury 

might have conflated mismanagement with knowing and 

willful misconduct.

For all of these reasons, we affirm Akhigbe’s conviction 

and turn to his sentencing challenge.

III.

Akhigbe argues that the district court committed 

procedural error by failing to give specific, individualized 

reasons—both orally and in writing—for the non-Guidelines 

sentence it imposed.

“Given the broad substantive discretion afforded to 

district courts in sentencing, there are concomitant procedural 

requirements they must follow.” In re Sealed Case, 527 F.3d 

188, 191 (D.C. Cir. 2008). A district court begins by 

calculating the appropriate Guidelines range, which it treats as 

“the starting point and the initial benchmark” for sentencing.

Gall v. United States, 552 U.S. 38, 49 (2007). Then, “after 

giving both parties an opportunity to argue for whatever 

sentence they deem appropriate,” the court considers all of the 

section 3553(a) sentencing factors and undertakes “an 

individualized assessment based on the facts presented.” Id. at 

49–50. If the court “decides that an outside-Guidelines 

sentence is warranted,” it must “consider the extent of the 

deviation and ensure that the justification is sufficiently 

compelling to support the degree of the variance.” Id. at 50.

Once the district court determines the sentence, section 
12

3553(c) requires it to “state in open court the reasons for its 

imposition of the particular sentence,” and if the sentence falls

outside the advisory Guidelines range, to provide “the specific 

reason” for the departure or variance. 18 U.S.C. § 3553(c)(2).

The court must also articulate in writing and “with 

specificity” its reasons for departing or varying from the 

advisory Guidelines. Id. “When a district judge fails to 

provide a statement of reasons, as [section] 3553(c) requires, 

the sentence is imposed in violation of law.” In re Sealed 

Case, 527 F.3d at 191.

In sentencing Akhigbe, the district court mentioned three 

section 3553(a) factors that it said were significant to its 

sentence: the severity of the offense, deterrence, and the need 

to protect the public from the defendant and his actions. 18 

U.S.C. § 3553(a)(2)(A)–(C). Beginning with severity, the 

court remarked:

Even as we speak right now, a raging debate going 

on in this country is the matter of healthcare. And 

Congress is going to decide whether there should be 

a healthcare bill, or there should not be a healthcare 

bill. And regardless of what side you fall on, . . . both 

sides agree that the system is broken and should be 

repaired. And one of the faults of the healthcare 

system in this country is the cost. And much of the 

cost is generated by fraud in the system. And it is 

people like Dr. Akhigbe who have committed fraud 

that drives up the cost of the healthcare numbers. 

Taxpayers have to pay for this fraud. That’s in 

general. Specifically, individual patients have to pay 

for this fraud.

Sent’g Tr. at 23 (Mar. 19, 2010). The district court then 

described “a couple of things that . . . stood out in [its] mind 
13

during this particular trial,” such as the testimony that 

Akhigbe submitted claims for office hours allegedly held on 

Thanksgiving Day, as well as the testimony of one of 

Akhigbe’s female patients who had appeared “shocked, 

surprised[,] and angered” when she was asked about treatment 

for a cyst on her ovary that never actually took place. Id. at 

23–24. For the district court, this woman’s testimony brought 

to mind the possibility that “should [she] in the future apply 

for medical insurance, . . . she could possibly be denied 

insurance because of a pre-existing condition.” Id. at 24.

Turning to the other two section 3553(a) factors, the district 

court stated that because “Dr. Akhigbe will no longer be able 

to practice medicine . . . any sentence that he gets will be a 

deterrent.” Id. “And also,” the court added, “with respect to 

protecting the public from Dr. Akhigbe and people like [him], 

that will also be addressed when sentence is imposed.” Id.

After reciting the undisputed Guidelines range of 33 to 41 

months, the district court stated that it was “convinced that a 

sentence outside of the guideline range is appropriate” and 

announced a sentence of 53 months’ imprisonment. Id. at 25.

Subsequently, in its written Statement of Reasons—which 

remains under seal except to the extent this opinion refers to 

information therein, see United States v. Wilson, 605 F.3d 

985, 1035 n.7 (D.C. Cir. 2010) (providing the same)—the 

district court gave the following explanation:

A) Defrauding the health care system contributes to 

the rising cost of health care in this country. In 

addition, a sentence above the guidelines will 

promote respect for the law and provide just 

punishment for the offense. B) 12 months above the 

guidelines is reasonable. It will provide adequate 

deterrence and protect the public.
14

Ordinarily, we review a district court’s sentence for abuse 

of discretion. See Gall, 552 U.S. at 51. The first step of that 

review, and the only one at issue here, requires that we ensure 

the district court “committed no significant procedural error,” 

which includes “failing to adequately explain the chosen 

sentence—including an explanation for any deviation from 

the Guidelines range.” Id. In this case, however, our review is 

for plain error because, as Akhigbe concedes, he failed in the 

district court to object to the adequacy of that court’s 

reasoning. To establish plain error, Akhigbe must show that 

“(1) there is in fact an error to correct; (2) the error is plain; 

(3) it affects substantial rights; and (4) it seriously affects the 

fairness, integrity, or public reputation of judicial 

proceedings.” United States v. Mahdi, 598 F.3d 883, 888 

(D.C. Cir. 2010) (internal quotation marks omitted).

Reviewing the sentencing proceedings as a whole, 

including the district court’s oral and written statements, we 

conclude that the court plainly erred in failing to provide an 

adequate explanation for the unsought above-Guidelines 

sentence it imposed. Although the district court did recite 

sentencing factors that it said informed its decisionmaking,

contrary to section 3553(c) and controlling case law it never 

explained why those factors justified Akhigbe’s particular 

sentence.

Devoting most of its discussion at sentencing to its views 

about the severity of Akhigbe’s offense, the district court 

commented generally and somewhat hyperbolically about the 

negative consequences of health care fraud, which the court 

said generates “much of the cost” in the United States health 

care system. Sent’g Tr. at 23. Although these broad

observations about the social costs of health care fraud—

assuming their correctness—are certainly relevant to

sentencing, they would apply equally to any defendant
15

convicted of this offense and thus provide no individualized 

reasoning as to why the court believed a sentence 12 months

above the Guidelines range was appropriate for this particular 

defendant. True, as the government emphasizes, the district 

court did go on to discuss specific evidence from Akhigbe’s 

trial, saying that it would “never forget” the testimony that 

Akhigbe submitted claims for office visits on Thanksgiving.

Id. The district court also noted the effect Akhigbe’s fraud 

had on his patients, as exemplified by the woman who had to 

testify that Akhigbe never treated her for an ovarian cyst and 

who, the district court surmised, might face impediments to 

obtaining health insurance due to Akhigbe’s fraud. But the 

district court never explained whether or why this testimony 

demonstrated that this defendant’s fraud was more harmful or 

egregious than the typical case. Nor did the district court 

suggest that it believed the Guidelines range for health care 

fraud was too low even in the mine-run case. See Kimbrough 

v. United States, 552 U.S. 85, 101–02, 109 (2007) (indicating 

that a district court generally may “consider arguments that 

‘the Guidelines sentence itself fails properly to reflect 

§ 3553(a) considerations’ ” but also suggesting that “closer 

[appellate] review may be in order when the sentencing 

judge” reaches such a judgment (quoting Rita v. United 

States, 551 U.S. 338, 351 (2007))). As a result, we can only 

speculate as to why the district court believed the severity of 

Akhigbe’s offense merited a 53-month sentence.

The district court’s brief mention of two other section 

3553(a) factors sheds no additional light on the sentence. As

to the need to “protect[] the public,” the court said that this 

factor would “be addressed when sentence is imposed.”

Sent’g Tr. at 24. But mere “recitation of [a] § 3553(a) factor[] 

without application to the defendant being sentenced does not 

demonstrate reasoned decisionmaking or provide an adequate 

basis for appellate review.” United States v. Carter, 564 F.3d 
16

325, 329 (4th Cir. 2009). As to deterrence, the court indicated

that “any sentence that [Akhigbe] gets will be a deterrent” 

because he “will no longer be able to practice medicine.”

Sent’g Tr. at 24 (emphasis added). But if in the district court’s 

view any sentence would “afford adequate deterrence to 

criminal conduct,” 18 U.S.C. § 3553(a)(2)(B), then this factor 

could provide no support for sentencing Akhigbe to 53 

months’ imprisonment, see id. § 3553(a) (“The court shall 

impose a sentence sufficient, but not greater than necessary, 

to comply with the purposes set forth in [section 3553(a)(2)].” 

(emphasis added)).

Finally, the district court’s written statement of reasons 

was even less specific than its oral explanation. The court’s 

assertions that the sentence would “promote respect for the 

law[,] . . . provide just punishment for the offense[,] . . . 

provide adequate deterrence[,] and protect the public” fall 

well short of section 3553(c)(2)’s requirement to state the

reasons for giving a non-Guidelines sentence “with 

specificity.” And as the government conceded at oral 

argument, the district court’s reference to healthcare fraud 

“contribut[ing] to the rising cost of health care in this 

country” would have applied to any defendant convicted of 

health care fraud. See Oral Arg. Tr. at 22:05–22:20, 23:16–

23:25, 25:03–25:12. Although acknowledging the statement’s 

deficiencies, the government suggests that what the district 

court wrote was good enough when read in conjunction with 

its oral explanation. But section 3553(c)(2)’s writing 

obligation is no “mere formality.” In re Sealed Case, 527 F.3d 

at 192. “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 wellconsidered.” Id. Written statements offering only vague 

generalities that fail to discuss meaningfully the particular 
17

defendant and his particular crime do not serve these 

important purposes.

In In re Sealed Case, we found plain procedural error 

where the district court imposed an above-Guidelines 

sentence “without providing any explanation at all” in open 

court and also submitted no written statement of reasons. Id. 

at 192–93 (indicating that the error was “obvious enough”).

To be sure, the facts of this case are not quite so extreme, but 

we nonetheless believe that the district court’s oral and 

written statements are clearly insufficient. We thus conclude 

not only that the district court erred procedurally in 

sentencing, but also that its error was plain. In reaching this 

conclusion, we recognize that district courts necessarily and 

appropriately exercise professional judgment in determining 

how much reasoning to give when explaining discretionary 

sentencing decisions. In many cases, such as where the parties 

have presented only “straightforward, conceptually simple

arguments” and the district court concludes a Guidelines 

sentence is appropriate, a fairly brief recitation of reasons will 

satisfy the court’s procedural obligations. Rita, 551 U.S. at 

356–57. Moreover, although a district court must explain its

decision to impose a non-Guidelines sentence with specificity 

and “ensure that the justification” for its sentence “is 

sufficiently compelling to support the degree of the variance,” 

Gall, 552 U.S. at 50, we do not ask the court to do the 

impossible and provide detailed reasoning as to why it chose, 

for example, to vary upward by 12 months rather than by 11 

or 13. But under the circumstances of this case, where the 

district court imposed a sentence that varied significantly 

from both the advisory Guidelines range and from the 

sentences the parties sought, the brief and generalized 

explanation the court provided is plainly inadequate to satisfy 

section 3553(c)’s requirements.
18

Under In re Sealed Case, Akhigbe has also established

the other elements of plain error review. The district court’s 

failure to explain adequately the sentence it imposed is

“prejudicial in itself because it precludes appellate review of

the substantive reasonableness of the sentence, thus seriously 

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

judicial proceedings.” 527 F.3d at 193 (internal quotation 

marks and citations omitted). Furthermore, a satisfactory

statement of reasons is essential “to promote the perception of 

fair sentencing” and to allow “the public to learn why the 

defendant received a particular sentence.” Id. (internal 

quotation marks omitted).

Accordingly, we exercise our discretion to notice this 

plain sentencing error, vacate the sentence, and remand for 

resentencing.

So ordered.