# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 1, 2011 Decided June 14, 2011

No. 10

- 3019

U NITED S TATES OF A MERICA

, A PPELLEE

v.

E HIGIATOR O. A KHIGBE

, A PPELLANT

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: G INSBURG

, T ATEL

, and B ROWN

, Circuit Judges

.

Opinion for the Court filed b y Circuit Judge T ATEL

.2

T ATEL

, Circuit Judge : Appellant , a primary care physician who served Medicaid patients in the District of Columbia, appeals his conviction s for heal th care fraud and for making false statements relating to health care matters, as

we ll 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 in adequate explanation f or its above

- Guidelines sentence and because this procedural defec t 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 c are physician in December 2001.

To receive payment s from Amerigroup for services provided to Medicaid patients , doctors submit claim forms

— which at the time rele vant to this case were called “HCFA
1500” forms or “HCFA” forms

— on which they record their patients’ identifying information, the date s of service s , diagnosis information, and procedure codes specify ing 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, t hey must sign
the m and certify that the services not only were provided, but
also were medically appropriate and necessary. Once Amerigroup re ceives and processes the forms , it sends providers an explanation of payment and, if appropriate, a
check

.3

During Akhi g be’s participation in Amerigroup’s
network

, the company began noticing unusual trends in his
claims

, including billing s for an abnormal ly 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 visi ts

. P rompted by these observations, Amerigroup launch ed

an investigation o f Akhigbe’s practice and conduct ed an onsite audit in May 2004

. Based on the sample of patient files audited, Amerigroup discovered that Akhigbe had documentation for only six percen t of the services billed. Several weeks later, t he company terminate d 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 wi th 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

. T he false statement charges related to 18 specific false HCFA claims, all submitted in June 2004. After dismissing one of the false statement count s , the government proceeded to tri al on the other claims.

At trial , the government supported its allegations with testimony from patients and employe es that numerous visits and procedures for which Akhigbe had billed Amerigroup4

either never occurred or were misrepresented , as well as with
evidence that he had creat ed false progress report notes for patient files to cover up discrepancies

. Over Akhigbe’s objection, t he government also introduced documentation of

HCFA claims dating back to December 2002 that Akhigbe
had submitted to Amerigroup

. It used this evidence t o 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 form s

.

For its pa rt, t he 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 pra ctice

, he delegate d 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 n ever saw Akhigbe fill o ut HCFA forms or otherwise involve himself with billing . T hey 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 mismanage ment 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 “ a5

mistake in judgment or an error in management” could not
establish fraudulent intent. Although declining to give th at instruction, the district court did instruct the jury that the government had to prove beyond a reasonable doubt that Akhigbe defr auded 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

se ntencing hearing, Akh i g be and the government agreed that the applicable advisory Guidelines range was 33 to 41 months’ imprisonment, and each argued f o r a within

Guidelines sentenc e

— albeit at opposite ends of the range. The district court , however, sentenc ed 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
requeste d. 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 predat ed the 17 remaining specific false statements from June
2004 charged in t he indictment. According to Akhigbe, the
district court shou ld 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 cumulat ive given the government’s ability to rely exclusively on evidence regarding the specific false

statements. A dmitting evidence concerning prior HCFA
submissions , he asserts, risk ed confusion and prejudice6

because it could have led the jury to convict Akhig be 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

.

W e see no abuse of discretion in the district c ourt’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 c ourt 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 versu s 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)

. A s the district court explained in ruling on Akhigbe’s pretrial motion to exclude, the contested
evi dence was “highly probative on the issue of the e xistence
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 (includ ed at J.A. 61). Specifically, the evidence allowed the government t o 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 be cause the government
had “evidentiary alternatives. ” Old Chief v. United States , 519 U.S. 172, 18 4 (1997) . B ut the “mere showing of some alternative means of proof ” does not necessarily indicate an
abuse of discretion. I d. at 183 n.7. I n any event

, evidenc e relating to discrete false statements from a single month in 2004 was hardly equivalent in probative value to the evidence7

Akhigbe sought to exclude

. Balanced against its probative
value , the risk that this earlier evidence of false HCFA
submissions conf use d and prejudice d 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 wheth er 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
admissi on 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 c harge d 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

- the

record bal ancing.

Next , Ak hi g be 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 whe ther 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 w e normally review constitutional questions de novo

, s ee 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 error8

deprives a defendant of a fair trial

, ” United States v. Lath ern , 488 F.3d 1043, 1046 (D.C. Cir. 2007). B ecause Akhigbe has
come nowhere close to s howing that the error he asserts rise s to that level , we apply ordinary abuse of discretion review.
See id.

Akhigbe insists there was a nonhearsay purpose for Stein’s p lanned 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 t he
record demonstrates that Akhigbe actual ly sought to introduce
this out

- of

- court statement fo r the truth of the matter as serted

. 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 wi tness
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, 2 009). Stein’s testimony , Akhigbe’s counsel indicated

, was “the only way [ he could] get in evidence . . . that [Akh igbe] did not owe that money.” Id. at 79. Using Stein’s testimony about what an Amerigroup representative told him
to show that Akhigbe owed n o money would have been classic hearsay not covered by any authorized exception

. See Fed. R. Evid. 802; Muldrow ex rel. Estate of Muldrow v. Re

Direct, Inc. , 493 F.3d 160, 167 (D.C. Cir. 2007)

.

Akhigbe argues t hat t he proposed testimony was relevant

to es tablishing his state of mind because it showed that he acted diligently upon receiving the letter from Amerigroup
and that he reason ably believe d the matter was resolved after Stein’s conversation with the company. Under such a theory

, Akhigbe contends , th e testimony would have been relevant9

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 self

imposed limitation

, and absent other evidence concerning what Stein told Akhigbe about his conversation with Amerigroup, we se e no error in the district court’s conclusion that Akhigbe lacked any relevant nonhear say use for Stein’s testimony.

T his bring s 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 wh ich 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 q uotation marks omitted ).
Such evidence may be direct or circumstantial. See U nited

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

c ircumstantial evidence permitted a reasonable jury to find that he had acted in good faith ). In reviewi ng 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 whethe r the district court should have given the requested good faith instruction based on the two defense witnesses’ testimony that Akhigbe10

relied on others to prepare HCFA forms because the court adequately conveyed the substance of that instruction in its

exp lanation 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 s omething that the
law forbid s. 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 t o 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. T hese
instruction s “substantially covered the same ground” as the good fait h instruction Akhigbe sought, Hurt , 527 F.3d at 1352, because t hey made clear to the jury that if it believed Akhigbe’s argument and concluded that he subm itted false claims to Amerigroup due to mere negligence, then it had to acquit.

Akhigbe nonetheless argues that the instructions were
inade quate 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 fa irly general , stating that “[e]vidence11

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 th e phrase “error in
management

, ” but that provides no reason to believe the jury might have conflated mismanagement with knowing and
willful mi sconduct

.

For all of these reasons, we affirm Akhigbe’s conviction and turn to his sentencing challenge.

III.

Akhigbe argues that the distr ict court committed procedural error by failing to give s pecific, individualized

reasons

— both orally and i n writin g

— for the non

- G uidelines 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 dis trict court begin s by calculating the appropriate Guidelines range, which it treat s as “the starting point and the initial benchmark” for sentencing.
Gall v. United States , 552 U.S. 38, 49 (2007). The n, “after giving both parties an opportunity to argue fo r whatever sentence they deem appropriate,” the court consider s all of the section 3553(a) sentencing factors and undertak e s “an
in dividualized assessment based on the facts presented.” Id. at
49

– 50. If the court “ decides that an outside

- Guidelines

sentenc e 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, section12

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 art iculate in writing and “with specificity” its reasons for depart ing or vary ing 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 mention ed three section 3553(a) factors that it said were significan t to its

sentence: the severity of the offense, deterrence, and the need
to protect the public from the defenda nt 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 heal thcare 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] mind13

during this particular trial,” such as the testimony that Akhigbe submitted claims for office hours allegedly he ld on Thanksgiving Day, as well as the testimony of o ne 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 distr ict 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 3 553(a) factors, the district court stated that because “Dr. Akhigbe will no longer be a ble 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 a nd 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 appropr iate” 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, 103 5 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 res pect 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

O rdinarily , 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 explanatio n 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 mu st 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, 88 8 (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 3 553(c) and controlling case law it never explained why tho se factors justified Akhig be’s particu l ar

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 th e court
said generates “much of the cost” in the United States health
care system. Sent’g Tr. at 23. Although t hese broad
observations about the social costs of health care fraud

— assuming their correctness

— are certainly relevant to sentencing , they would a pply equally to any defendant15

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 emphasi zes, 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

. I

d. The district court also noted the effect Akhigbe’s f raud 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 eve n in the mine

- run case

. See Kimbrough
v. United States , 552 U.S. 85, 10 1

– 02, 10 9 (2007) ( indicating
that a district court generally may “ consider arguments that

‘ the Guidelines sentence its elf 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 offens e 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 addres sed when sentence is imposed.” Sent’g Tr. at 24. But m ere “ 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 Sta tes v. Carter , 564 F.3d16

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 i f in the d istrict 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

, s ee id. § 3553(a) (“ The court shall impose a s entence sufficient, but not greater than necessary

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

Finally, t he district court’s written statement of reasons

was even less specific tha n 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 a pplied 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 state ment’s
deficiencies

, the government suggests that what the district court wrote was good enough when read in conjunction with
its oral explanation. B ut 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 reas on to writing work together to ensure a sentence is well

considered.” Id. Written s tatements offer ing only vague generalities that fail to discuss meaningfully the particular17

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 e rror was “obvious enough”)

. To be sure, the facts of thi s case are not quite so extreme, but

w e nonetheless believe that the district court’s oral an d
written statement s are clearly insufficient

. W e thus conclude not only that the district court e rred proc edurally in sentencing, but also that its error was plain. In reach ing this
conclusion , we recognize that distr ict courts necessarily and appropriately exercise professional judgment in determining how much reasoning to give when explain ing discretionary

s entencing decision s. I n 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 compellin g 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 reason ing 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

sentence s the parties sought , the brief and generalized explanation the court provided is plainly inadequate to satisfy

s ection 3553(c)’s requirements

.18

U nder 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 prec ludes appell ate review of
the substantive reasonableness of the sentence, thus s eriously
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

s tatement 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

.