FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-10033 Plaintiff-Appellee,

D.C. No.

v.  CR-00-00377-WBS

JAWAD MIQBEL,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, Chief Judge, Presiding

Argued and Submitted

October 17, 2005—San Francisco, California

Filed April 17, 2006

Before: Stephen Reinhardt and Sidney R. Thomas,

Circuit Judges, and Jane A. Restani,* Chief Judge,

United States Court of International Trade.

Opinion by Judge Reinhardt

*The Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by designation. 

4187
COUNSEL

Quin Denvir, Federal Public Defender; Timothy Zindel,

Assistant Federal Public Defender (argued), Sacramento, California, for the defendant-appellant. 

McGregor W. Scott, United States Attorney; Samantha S.

Spangler, Assistant U.S. Attorney (argued), Sacramento, California, for the plaintiff-appellee.

OPINION

REINHARDT, Circuit Judge: 

Jawad Miqbel appeals the sentence imposed by the district

court on the grounds that the court failed to set forth sufficient

4190 UNITED STATES v. MIQBEL
reasons for its imposition of a sentence outside the recommended range, in violation of 18 U.S.C. § 3553(c), and that

the sentence was unreasonable because it was imposed to provide “just punishment,” a factor he alleges to be impermissible in revocation sentencing. We vacate the sentence and

remand for resentencing. 

I.

On February 21, 2001, Jawad Miqbel pled guilty to a

charge of conspiracy to possess a listed chemical with knowledge and reasonable cause to believe it would be used to manufacture methamphetamine in violation of 21 U.S.C. § 846

and § 841(d)(2). On September 5, 2001, Chief Judge William

Shubb of the United States District Court for the Eastern District of California sentenced him to three years imprisonment

and three years of supervised release in addition to requiring

mandatory drug testing. Miqbel served his prison sentence

and was released under the supervision of the court on March

18, 2003. 

Following his release, Miqbel used methamphetamine sporadically in violation of the conditions of his release. On September 3, 2003, he admitted to his probation officer that he

had used methamphetamine on or around August 31, 2003.

On October 27, 2003, he tested positive for amphetamine and

methamphetamine. On May 3, 2004, Lodi Police initiated a

traffic stop on a vehicle driven by Miqbel and during a subsequent search, conducted with his consent, found 7.1 grams of

marijuana and 1.3 grams of methamphetamine in the car. He

was released the following day and immediately reported the

arrest to his probation officer. Based on these incidents, the

probation officer filed a petition with the court on June 1,

2004 alleging that Miqbel had violated the conditions of his

release. In the petition, the probation officer noted that Miqbel

had “been in high frequency substance abuse testing and

group and individual counseling” since late 2003 and that

UNITED STATES v. MIQBEL 4191
since he had started that treatment, “[a]ll indications were that

he was doing well.” 

Appearing before the district court at the revocation hearing

on December 22, 2004, Miqbel was found in violation of one

charge, use of methamphetamine, a Grade C violation under

the federal Sentencing Guidelines. For a Grade C violation,

the Chapter 7 policy statements recommend a range of imprisonment of three to nine months for those who, like Miqbel,

have a Category I criminal history. U.S. SENTENCING GUIDELINES MANUAL § 7B1.4 (2004) (Term of Imprisonment (Policy

Statement)).1 At the revocation hearing, however, the district

court sentenced Miqbel outside of the recommended three- to

nine-month range, to a term of twelve months of imprisonment, despite the recommendations of the probation officer

and the government that he receive a six month sentence.2 The

only reason provided by the court for the upward departure

was: “I have considered the guidelines under Chapter 7, and

I have carefully given consideration to a sentence within those

guidelines, but I find that a sentence within those guidelines

would be insufficient to meet the purposes of sentencing

under these circumstances.” 

On May 25, 2005, the district court heard and denied Miqbel’s motion for bail pending appeal. At this hearing, the court

acknowledged that it “could have and probably should have

been more explicit in the reasons given for the sentence” that

it had imposed at the earlier revocation proceeding, and sug1The Sentencing Commission has historically issued only “ ‘advisory

policy statements’ applicable to revocations of probation and supervised

release instead of mandatory guidelines.” United States v. Musa, 220 F.3d

1096, 1101 (9th Cir. 2000). Now, of course, all sentencing guidelines and

policy statements are advisory, not mandatory. See United States v.

Booker, 543 U.S. 220, 259 (2005). 

2We have held that the district court is not bound by the recommendation of the parties in sentencing, so the court did not err by virtue of its

refusal to follow the recommendations. See United States v. Hurt, 345

F.3d 1033, 1036 (9th Cir. 2003). 

4192 UNITED STATES v. MIQBEL
gested that Miqbel’s counsel raise on appeal the issue whether

a court can consider punishment as a factor in deciding what

sentence to impose upon revocation of supervised release. In

the course of the bail hearing, the court stated that in its view,

“punishment is the sentence imposed in order to promote

respect for the law and to provide just punishment for the

offense”3 and stated its belief that punishment could be taken

into account in revocation sentencing. 

Miqbel appeals his sentence.4 This court has jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II.

Whether the district court provided an adequate statement

3At the sentencing and bail hearings, there was some discussion of

behavior that in two respects might indicate Miqbel’s potential for danger

to the community, a § 3553(a)(2) factor that may properly be considered

in terminating a term of supervised release (see § 3583(e)). First, the government noted an alleged domestic dispute between Miqbel and his girlfriend. (When this was raised, Miqbel’s counsel stated that the girlfriend,

who was present at sentencing, now “sa[id] he didn’t strike her” and that

the report was false.) Second, the government cited the possibility that

Miqbel drove a delivery truck at work while using drugs. (Miqbel’s counsel pointed out at the bail hearing that this was mere supposition and that

there was no evidence “that Mr. Miqbel ever drove a motor vehicle while

under the influence.”) The government also provided information as to

Miqbel’s history of pretrial and supervised release violations. However,

when sentencing Miqbel, the district court did not refer specifically to any

of these factors, nor did it appear to rely on any of them as a basis for the

sentence imposed. Furthermore, the court’s questions at the subsequent

bail hearing (“What about the law on danger to the community? What’s

the definition of danger to the community?”) and the ensuing discussion

make it evident that it had not previously engaged in any substantive consideration of such factors and did not rely on such factors when imposing

the sentence. 

4Miqbel’s original expected release date was December 18, 2005. However, on October 19, 2005, we granted the request for bail pending resolution of this appeal and ordered Miqbel’s release, remanding to the district

court only for the purpose of determining the conditions of release. 

UNITED STATES v. MIQBEL 4193
of reasons for the sentence it imposed is a question of law that

we review de novo. United States v. Duran, 37 F.3d 557, 560

(9th Cir. 1994) (citing United States v. Upshaw, 918 F.2d 789,

792 (9th Cir. 1990), cert. denied, 499 U.S. 930 (1991)). If a

defendant fails to object to the district court’s failure to adequately state reasons, however, the sentence is reviewed for

plain error. See United States v. Vences, 169 F.3d 611, 613

(9th Cir. 1999). 

We have historically reviewed the district court’s consideration of non-binding policy statements, such as Chapter 7, for

abuse of discretion. United States v. Tadeo, 222 F.3d 623, 625

(9th Cir. 2000); United States v. George, 184 F.3d 1119, 1120

(9th Cir. 1999). We review the sentence ultimately imposed

for reasonableness. United States v. Booker, 543 U.S. 220,

261-62 (2005).5

5According to § 3742, a sentence “imposed for an offense for which

there is no sentencing guideline” — i.e., for which there is only a policy

statement — will be reversed only if it is “plainly unreasonable.” 18

U.S.C. § 3742(a)(4) & (f)(2). After Booker, however, it appears that the

applicable standard is “reasonableness.” See id. at 261; see also United

States v. Davis, 428 F.3d 802, 808 (9th Cir. 2005) (as amended) (holding

that, after Booker, “appellate courts should review sentences for ‘unreasonableness’ ”). At least two other circuits have held that Booker’s excision of § 3742(e) and its establishment of a “reasonableness” standard “is

fairly understood as requiring that its announced standard of reasonableness now be applied not only to review of sentences for which there are

guidelines but also to review of sentences for which there are no applicable guidelines.” United States v. Fleming, 397 F.3d 95, 99 (2d Cir. 2005)

(reviewing a sentence on revocation of supervised release for reasonableness); see also United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005)

(same); United States v. Edwards, 400 F.3d 591, 592-93 (8th Cir. 2005)

(same); but see United States v. Johnson, 403 F.3d 813, 816-17 (6th Cir.

2005) (declining to decide whether to apply a “reasonableness” or a

“plainly unreasonable” standard). We join the Second and Eighth Circuits

in concluding that Booker’s “reasonableness” standard has displaced the

former “plainly unreasonable” standard in the context of revocation sentencing. 

4194 UNITED STATES v. MIQBEL
III.

[1] On appeal, Miqbel argues, first, that the trial court erred

by failing to explain adequately the reasons for his sentence,

as required by 18 U.S.C. § 3553(c).6 Section 3553(c) requires

the court:

at the time of sentencing, [to] state in open court the

reasons for its imposition of the particular sentence,

and, if the sentence — 

(1) is of the kind, and within the range, described

in subsection (a)(4), and that range exceeds 24

months, the reason for imposing a sentence within a

particular point within the range; or 

(2) is not of the kind, or is outside the range,

described in subsection (a)(4), the specific reason for

the imposition of a sentence different from that

described, which reasons must be stated with specificity in the written order of judgment and commitment . . . . 

18 U.S.C. § 3553(c) (emphasis added). The requirement

applies to sentences imposed following consideration of the

Sentencing Commission’s policy statements, as well as those

imposed following consideration of the guidelines’ previously

mandatory provisions.7 For an offense like Miqbel’s, classi6Although after Booker, the sentencing guidelines are no longer mandatory, the requirements of § 3553(c) remain applicable. See United States

v. Fifield, 432 F.3d 1056, 1063-66 (9th Cir. 2005) (applying the § 3553(c)

requirement post-Booker); see also Booker, 543 U.S. at 259, 266 (holding

that after the excision of 18 U.S.C. § 3553(b)(1) and § 3742(e), “[t]he

remainder of the [Federal Sentencing] Act ‘function[s] independently’ ”

and “remain[s] intact” (citation omitted) (second alteration in original)). 

7Subsection (a)(4), referred to in § 3553(c), includes “the applicable

guidelines or policy statements issued by the Sentencing Commission purUNITED STATES v. MIQBEL 4195
fied as Grade C and involving an offender with a Category I

criminal history, the recommended range for sentencing under

the Chapter 7 policy statements is three to nine months. U.S.

SENTENCING GUIDELINES MANUAL § 7B1.4 (2004). The district

court, however, imposed what would appear to be an out-ofrange sentence of twelve months. 

The government argues that according to United States v.

Lockard, 910 F.2d 542 (9th Cir. 1990), there is “no ‘range’

for revocation of a term of supervised release and imposition

of the term of that sentence.” Id. at 545. Therefore, the government contends, the court “need not comply with section

3553(c)(2) when sentencing for a supervised release violation,

but need only set forth its general reasons for a sentence pursuant to the prefatory language of section 3553(c).” The government overlooks, however, the fact that Lockard was

decided in 1990, four years before an amendment to

§ 3553(a)(4)(B) added the phrase “policy statements.” See

§ 3553(a)(4)(B) (“[I]n the case of a violation of probation or

supervised release, [the court shall consider] the applicable

guidelines or policy statements issued by the Sentencing

Commission pursuant to [28 U.S.C. § 994(a)(3)].” (emphasis

added)); see also George, 184 F.3d at 1120 (explaining the

effect of the 1994 amendments). Because § 7B1.4, which is a

policy statement prescribing sentencing ranges for defendants

in Miqbel’s position, was not made applicable to § 3553 until

the 1994 amendment was adopted, it could not have been

applied to Lockard. 

[2] Miqbel’s supervised release sentencing clearly falls

within § 3553(c)(2). Because § 3553(a)(4), as amended,

suant to [28 U.S.C. § 994(a)(3)].” 18 U.S.C. § 3553(a)(4)(B). Section

994(a)(3) covers “guidelines or general policy statements regarding the

appropriate use of the provisions for revocation of probation set forth in

[18 U.S.C. § 3565], and the provisions for modification of the term or conditions of supervised release and revocation of supervised release set forth

in [18 U.S.C. § 3583(e)].” 28 U.S.C. § 994(a)(3). 

4196 UNITED STATES v. MIQBEL
includes the ranges of imprisonment applicable upon revocation of supervised release listed in the § 7B1.4 table, any sentence less than three months or more than nine months is

“outside the range” of sentences described in § 3553(a)(4).

Therefore, when it imposed a sentence that fell outside that

three-to-nine-month range, the district court was required to

provide “the specific reason for the imposition of a sentence

different from that described.” 18 U.S.C. § 3553(c)(2)

(emphasis added). 

In United States v. Musa, 220 F.3d 1096 (9th Cir. 2000),

the defendant made a claim similar to Miqbel’s based on the

trial court’s failure to “adequately set forth its reasons for

departing from the recommended guidelines as required by 18

U.S.C. § 3553(c).” Id. at 1101. Because Musa’s sentence

“went outside the policy statement range” — in Musa’s case,

the sentence imposed was the three-year statutory maximum,

instead of the three-to-nine-month range listed in § 7B1.4 —

we held that the district court was required to provide specific

reasons for its departure from the recommended sentencing

range. Id.8

[3] In Miqbel’s case, the only reason the district court provided at sentencing for imposing an out-of-range twelvemonth sentence was that it found that “a sentence within [the]

guidelines would be insufficient to meet the purposes of sentencing under these circumstances.”

9

 Although the govern8Cited in Musa, United States v. Montenegro-Rojo, 908 F.2d 425 (9th

Cir. 1990), also held that reasons for departure “must be sufficiently specific to allow this court to conduct a meaningful review.” Id. at 428. 

9

In contrast, the district court in Musa found that the defendant was a

“danger to the community.” Musa, 220 F.3d at 1101; see § 3553(a)(2)(C)

(“to protect the public from further crimes of the defendant”). This was

held to be a sufficiently specific reason to satisfy § 3553(c)(2). Musa, 220

F.3d at 1101; compare United States v. Vallejo, 69 F.3d 992, 995 (9th Cir.

1995) (holding the court’s statement that “based on all the papers . . . the

sentence will be twelve months” to be an inadequate statement of reasons

under § 3553(c)). 

UNITED STATES v. MIQBEL 4197
ment contends that the district court provided the necessary

reasons for its sentence “through its colloquy with counsel,”

that exchange did not in fact provide any “specific reason[s]”

that would have satisfied § 3553(c)(2) for the imposition of a

twelve month sentence.10 Early in the colloquy, the district

court referred generally to Miqbel’s history of violations of

pretrial and supervised release conditions, and asked defense

counsel why it should not sentence Miqbel outside of the

Chapter 7 range. That exchange took place, however, at the

very beginning of the sentencing hearing, before defense

counsel had any opportunity to provide an explanation for

Miqbel’s past or current behavior. At that early point in the

proceeding, the district court clearly had not made a decision

regarding Miqbel’s sentence and was instead simply seeking

information that it believed might assist it in its later formulation of a sentence; at that point, the court could not be understood to be providing reasons for a sentence that it had not yet

decided to impose. In contrast, after both the prosecution and

defense had presented their arguments, the district court

arrived at its decision regarding Miqbel’s sentence and

declared: 

I have considered the guidelines under Chapter 7,

and I have carefully given consideration to a sentence within those guidelines, but I find that a sen10The government attempts to analogize the colloquy in the instant case

to that in United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999)

(“[W]hile the district court failed to comply with the technical requirements of § 3553, the court’s reasons were implicit in the colloquy the

court had conducted with counsel.”). In Vences, however, the court was

not operating within the context of § 3553(c)(2), but instead under

§ 3553(c)(1). Id. at 613. Therefore, unlike in the instant case, the Vences

court was not required to provide specific reasons for its rejection of the

recommended range. Also, in Vences, we engaged in plain error review,

while here we review under the ordinary error standard. Most important,

in Vences we held that we lacked jurisdiction over the appeal and dismissed it on that basis. For that reason if no other, the isolated statement

on which the government attempts to rely is of little or no assistance to

it. 

4198 UNITED STATES v. MIQBEL
tence within those guidelines would be insufficient

to meet the purposes of sentencing under these circumstances. 

Without further explanations of its reasons, the court sentenced Miqbel to twelve months in prison. At no time during

sentencing did the court tie Miqbel’s prior actions to its decision to impose a sentence outside of the recommended guidelines. Nor did it state that such actions were relevant to any

permissible sentencing factors, such as the need for deterrence

from future criminal conduct or rehabilitation.11

[4] The legislative history behind § 3553(c) makes the district court’s duty — and the failure to fulfill that duty in this

case — even more clear. The Senate Report explicitly differentiates between the requirements for sentences that are inside

the guideline range and sentences that are outside that range:

Subsection (c) contains a . . . requirement that the

court give the reasons for the imposition of the sentence at the time of sentencing. It also requires, if the

sentence is within the guidelines, the court to give its

reasons for imposing a sentence at a particular point

within the range. Further, if the sentence is not

within the sentencing guidelines, the court must state

the specific reason for imposing [a] sentence that

differs from the guidelines. 

Lockard, 910 F.3d at 545 (quoting S. Rep. No. 225, 98th

Cong., 2d Sess. 79 (1984), reprinted in 1984 Code Cong. &

Admin. News 3182, 3262 (emphasis added)) (internal quota11Although the Assistant United States Attorney present at sentencing

provided background on Miqbel’s history, she still recommended a sentence of only six months. Therefore, it is unclear from the record on sentencing on what basis the court justified its decision to impose a twelvemonth sentence. As to that inquiry, we have only the very cursory explanation offered by the court that “not all [defendants] have done what [Miqbel has] done” and that the guidelines under Chapter 7 were “insufficient.”

UNITED STATES v. MIQBEL 4199
tion marks and footnote omitted). The Report makes clear that

in departing from the recommended sentencing range, the

court must state the specific reason for imposing a sentence

that differs from the recommended range. Therefore, in

imposing a twelve-month sentence on Miqbel, the district

court was required to give the specific reasons why a three-tonine month sentence would not be sufficient and why a

twelve-month sentence was appropriate. 

[5] The government also argues that the district court

explained its reasoning for Miqbel’s sentence more explicitly

at the subsequent bail hearing, held in May 2005. Aside from

Miqbel’s claim that the basis articulated at that hearing was

“unreasonable,” in that the district court relied primarily on

punishment — a factor he alleges is not appropriate for consideration in the context of revocation sentencing, see infra

Part IV — the dispositive issue is that the purported specific

explanation was given at the bail hearing, and not at the revocation sentencing hearing. Section 3553(c) clearly requires the

court to state its reasons “at the time of sentencing.” 18 U.S.C.

§ 3553(c) (emphasis added). Therefore, post hoc reasons provided at a later proceeding cannot be used to satisfy the

§ 3553(c) requirement. 

This case well illustrates the reason for the rule we have

just discussed. Defendants are, except in most unusual circumstances, present at sentencing hearings. They are, however, frequently absent from bail hearings, as was Miqbel.

Thus, without such a rule, defendants might not hear directly

from the court the reasons for the length of their confinement.

To the extent that the bail hearing is useful in our analysis, it

is only because the district judge himself admitted at that

hearing that he “could have and probably should have been

more explicit [at sentencing] in the reasons given for the sentence [he] imposed” and that he relied primarily on punishment and a desire to promote respect for the law in imposing

the sentence.12 Among the various justifications offered at the

12The government argues that the district court also considered Miqbel’s

history of violations, as well as the need for adequate deterrence and pro4200 UNITED STATES v. MIQBEL
bail hearing for why he had not been more explicit in his reasons for imposing a twelve-month sentence, the district judge

stated that he did not want to “lecture or talk down” to Miqbel, that he was “at the end of his rope” with regard to Miqbel, that he misunderstood the applicable law,13 and that he

did not want to have to argue with Miqbel’s counsel about the

reasons for the sentence. The court acknowledged that its colloquy with counsel failed to provide an adequate record for

review on appeal, stating: “[i]n hindsight, I now realize that

it’s not the impact that the colloquy has on the defendant at

the time of sentencing that I should have been concerned

about. It was the impact that the colloquy would have had on

the Court of Appeals later on.”

14 It also recognized its admittection of the public, at the bail hearing — all permissible factors under

§ 3553(a) — and that the district judge stated at that hearing that he “could

go back and tie Mr. Miqbel’s conduct into each one of those factors.” The

district court did not, however, even at the bail hearing, specifically relate

any of these factors to its decision that a twelve-month sentence would be

sufficient but a three-to-nine month sentence would not. 

13The district judge stated at the bail hearing that 

[a]t that time, it was my understanding of the law . . . that if the

Court sentenced within the guidelines and the sentencing range

did not exceed 25 months, it was not necessary for the Court to

state the reasons for selecting the sentence that the Court did. . . .

When it came to supervised release, it was my understanding of

the law that . . . as long as the Court made it clear for the record

that it had considered the Chapter 7 guidelines, it was still not

necessary for the Court to state the reasons on the record why it

selected the sentence that it did as long as the sentence was

within the legal range. 

14Cf. United States v. McClellan, 164 F.3d 308, 310 (6th Cir. 1999)

(reversing the judgment of the district court and remanding for resentencing because it was “impossible” to review on appeal whether the sentence

was unreasonable, given the district court’s failure to offer reasons for its

sentencing departure, and concluding that although it can be presumed that

by reviewing the supervised release violation report, a district judge has

considered the recommended sentencing range, “[i]t is not enough to presume that [the court] also considered the various factors set out in

§ 3553”). 

UNITED STATES v. MIQBEL 4201
ted use of “shorthand” in sentencing, stating that it “found

that a sentence within those guidelines would not be sufficient

to meet the purposes of sentencing under the circumstances.

Of course, the purposes of sentencing is a shorthand term for

the factors to be considered in imposing a sentence listed in

Section 3553(a).”

15

[6] Although statements made by the court at the bail hearing regarding its perceptions or intentions at the time of the

revocation hearing cannot be taken as providing the reasons

for the sentence it imposed, as required by § 3553(c)(2), these

statements do support our conclusion that the district court

failed to explain the reasons for its departure from the Chapter

7 range with the required level of specificity.16 Because we

conclude that the district court failed to set forth the specific

reasons for imposing a sentence that differs from that recommended by the applicable policy statement, we vacate the sentence imposed and remand for resentencing. See United States

v. Vallejo, 69 F.3d 992, 995 (9th Cir. 1995); United States v.

Wilson, 7 F.3d 828, 839-40 (9th Cir. 1993).

15Here, the court failed to note that the only sentencing factors that may

be considered in sentencing for a violation of supervised release conditions are those provisions in § 3553(a) that are also listed in § 3583(e). See

infra Part IV. 

16There is no cause to apply plain error analysis here. Although Miqbel’s counsel did not expressly object to the district court’s failure to provide specific reasons for its departure from the recommended range, his

objections to the court’s sentencing decision were adequate to preserve the

issue. Indeed, the court cut those objections short when counsel sought to

discuss further the factors that the court could consider in imposing the

sentence and challenged the necessity for an out-of-range sentence, given

the application of those factors to the instant case. As the court subsequently stated, it did not offer reasons for its sentencing decision in part

because it believed counsel would “come back and argue, argue, argue,

argue again.” 

4202 UNITED STATES v. MIQBEL
IV.

Upon resentencing, the district court will be required to

provide an adequate statement of reasons for the sentence

imposed. See Wilson, 7 F.3d at 839-40. In order to avoid further errors on remand and to minimize the possibility of additional appeals, and because the district court has expressly

requested that we clarify the factors that may be considered

in determining the sentence to be imposed upon revocation of

a term of supervised release,17 we will examine briefly the

reasons alluded to by the district court (albeit at the wrong

hearing) for its initial sentencing decision and identify the

applicable statutory factors. 

[7] Section 3553(a) provides a list of ten factors to be considered in imposing a sentence upon conviction of a criminal

offense. 18 U.S.C. § 3553(a). Section 3583(e) incorporates

the majority of the factors listed in § 3553(a) as factors to be

considered in sentencing upon revocation of probation or

supervised release.18 18 U.S.C. § 3583(e). Specifically,

§ 3583(e) incorporates eight of the ten factors listed in

§ 3553(a); to that extent, the provisions are similar.19 Section

17The district court anticipated at the bail hearing that “the Court of

Appeals may well reverse and remand for a more complete articulation,”

and specifically urged the parties to have this court address the punishment question: “You may want to raise this on appeal, because, quite

frankly, I was not aware and, even more frankly, I’m still not aware that

the Court can’t consider punishment in deciding what sentence to impose

on revocation of supervised release.” 

18The government’s reliance on Vences is misplaced for the reasons

mentioned in note 10 supra, and because Vences’s sentencing did not

occur within the context of termination of a supervised release, but instead

involved an initial sentencing. See Vences, 169 F.3d at 612. Because the

sentencing in Vences was an initial criminal sentencing, § 3553(a) and not

§ 3583(e) applied. 

19Section § 3583(e) states that in the context of revocation, “[t]he court

may, after considering the factors set forth in section 3553(a)(1), (a)(2)B),

(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . . revoke a term of

supervised release [and impose a term of imprisonment].” 18 U.S.C.

§ 3583(e). 

UNITED STATES v. MIQBEL 4203
3583(e) specifically omits, however, § 3553(a)(2)(A), which

provides for consideration of “the need for the sentence

imposed to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the

offense.” 18 U.S.C. §§ 3553(a) (emphasis added); 3583(e).

Given that § 3553(a)(2)(A) is a factor that Congress deliberately omitted from the list applicable to revocation sentencing, relying on that factor when imposing a revocation

sentence would be improper. See Russello v. United States,

464 U.S. 16, 23 (1983) (“[Where] Congress includes particular language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (alteration in original) (citation and

internal quotation marks omitted)). 

In United States v. Booker, the Court held that § 3553(a)’s

sentencing factors guide appellate courts in “determining

whether a sentence is unreasonable.” Booker, 543 U.S. at 261.

In the case of a sentence imposed upon revocation of supervised release, it is the § 3583(e) factors that provide such

guidance. The improper reliance on a factor Congress decided

to omit from those to be considered at revocation sentencing,

as a primary basis for a revocation sentence, would contravene the statute in a manner similar to that of a failure to consider the factors specifically included in § 3583(e). Just as a

sentence would be unreasonable if the district court failed to

consider the factors listed in § 3553(a), see United States v.

Crosby, 397 F.3d 103, 115 (2d Cir. 2005), a sentence would

be unreasonable if the court based it primarily on an omitted

factor, such as a factor provided for in § 3553(a)(2)(A). 

Although a court may consider the need to sanction an individual for violating the conditions of probation or supervised

release when formulating its sentence at a revocation proceeding, that type of “sanction” is distinct from the “just punishment” referred to in § 3553(a)(2)(A). In the Chapter 7 policy

statements, the Sentencing Commission explained that viola4204 UNITED STATES v. MIQBEL
tions of probation or supervised release are properly characterized as “breach[es] of trust” and distinguished sanctions for

such a breach from the “imposition of an appropriate punishment for any new criminal conduct.” U.S. SENTENCING GUIDELINES MANUAL, Ch. 7, Pt. A (2004) (emphasis added). Punishment for the underlying offense, the Commission stated, must

be imposed separately, if at all, following a conviction by plea

or verdict in a separate criminal proceeding. The Commission

recognized, however, that in imposing a sentence upon revocation, a court may properly “sanction the violator for failing

to abide by the conditions of the court-ordered supervision.”

Id. (emphasis added). In sum, at a revocation sentencing, a

court may appropriately sanction a violator for his “breach of

trust,” but may not punish him for the criminal conduct underlying the revocation. 

[8] The omission of § 3553(a)(2)(A) from § 3583(e) also

makes clear that in imposing a revocation sentence, a court

may not properly consider a need to “promote respect for the

law,” based on the nature of the underlying criminal offense

committed, or on the “seriousness of the [underlying]

offense.” 18 U.S.C. § 3553(a)(2)(A). We recognize that the

difference between sanctioning a supervised release violator

for breach of trust and punishing him in order to promote

respect for the law is subtle indeed. We do not suggest that

a mere reference to promoting respect for the law would in

itself render a sentence unreasonable. However, such a reference is often intertwined with the concept of punishment, as

it is in § 3553(a)(2)(A) itself, and may serve as a basis for the

sentence imposed. For example, the district judge’s remarks

at the bail hearing demonstrate the extent to which he treated

the two concepts as related when imposing the sentence: 

And to me, the sentence that I gave was necessary in

order to promote respect for the law. . . . But if punishment is the sentence that’s imposed in order to

promote respect for the law and to provide just punishment for the offense as that is used in Section

UNITED STATES v. MIQBEL 4205
3553(a)(2)(A), then I did think that you could take

that into account.

It is clear from reviewing the entire colloquy at the bail hearing both that a primary basis for Miqbel’s sentence was punishment that was intended to promote respect for the law, and

that the court had begun to doubt the validity of such a basis.20

Even though the district court appears to have based its sentencing decision in part on an impermissible factor, and may

have committed reversible error,21 we vacate for the reason we

considered first: the district court did not provide an adequate

statement of reasons for the sentence at the time of sentencing.

CONCLUSION

Because the district court failed to state specific reasons for

the particular sentence imposed, we vacate Miqbel’s sentence

and remand to the district court for resentencing. 

VACATED and REMANDED for further proceedings

consistent with this opinion.

20As the district judge stated to defense counsel at the bail hearing: “I

told you that I thought you ought to be able to promote respect for the law

when somebody is on supervised release. I think I’m wrong now.” 

21Because of the district court’s reliance on an impermissible sentencing

factor and the failure of the record to show that it considered the appropriate § 3583(e) factors, we would likely be required to vacate and remand

for resentencing if for no other reason than to permit the judge to impose

a sentence on the basis of the proper factors. Cf. Montenegro-Rojo, 908

F.2d at 428 (9th Cir. 1990) (“[If] the district court considered both proper

and improper bases for departure, ‘we have no way to determine whether

any portion of the sentence was based upon consideration of the improper

factors,’ and must therefore vacate the sentence and remand for resentencing.” (citations omitted)). 

4206 UNITED STATES v. MIQBEL