ADAUCTO CHAVEZ-MEZA, Petitioner, v. UNITED STATES, Respondent
Interviewer(s): Anthony M. Kennedy, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg, Sonia Sotomayor
Interviewee(s): Rod J. Rosenstein, Todd A. Coberly

John G. Roberts, Jr.: We'll hear argument next today in Case 17-5639, Chavez-Meza versus United States. Mr. Coberly.

Todd A. Coberly: Mr. Chief Justice, and may it please the Court: Judicial discretion is not a whim.

It is to be guided by sound legal principles and subject to meaningful appellate review. And if appellate review for abuse of discretion is to mean anything, it is axiomatic that there must be a reason for the district court's decision apparent in the record.

This is particularly true where Congress has channeled the exercise of a district court's discretion by directing the district court to consider certain factors when making a discretionary choice. As the Court understood in Taylor, a district court in such circumstances must clearly articulate not only that it considered -- in fact, considered the relevant factors but how those factors impacted its decision.

John G. Roberts, Jr.: I -- I suppose you're not arguing that that's true in every case.

For example, if the record or the proceedings indicated exactly what the people were talking about, they were debating a particular point and that would explain it, that would be enough, right?

Todd A. Coberly: Mr. Chief Justice, we do believe that it would be enough.

There's -- oftentimes, as the Court recognized in Rita, how much explanation a district court judge needs to give depends so much on circumstances and context.

And I --

Ruth Bader Ginsburg: What is the standard of review that the court of appeals uses for sentence -- for sentences?

Todd A. Coberly: Justice Ginsburg, it -- it's -- it's reasonableness, which this Court understands in the original sentencing context to mean --

Ruth Bader Ginsburg: I thought that what -- doesn't the statute say, 3742, "imposed in violation of law"?

Todd A. Coberly: It --

Ruth Bader Ginsburg: The question is whether the sentence is imposed in violation of law?

Todd A. Coberly: Yes, Your Honor.

And as the Court has understood in -- in -- from Booker, through Rita, through Gall, ultimately, what that means, is was the -- was the sentence reasonable? And there's two components: The procedural reasonableness and substantive reasonableness. And, ultimately, this Court has understood that what -- what reasonableness means is, did the district court abuse its discretion?

Ruth Bader Ginsburg: But how could that be if the -- the district court sentenced within -- within the guidelines? It wasn't the same range, and it wasn't the same point within the guidelines as the original sentence, but it was still within the guidelines.

So how could a within-the-guidelines sentence be imposed in violation of law?

Todd A. Coberly: Well, I think that's the government's position, which is, well, in a sentence reduction, when it's reduced and it falls within the guidelines, the government's position, as I understand it, is essentially that that decision is unreviewable.

And we disagree with that -- that proposition. No matter what, as the Court has made clear in Gall, within-guideline sentences, outside-guideline sentences, the district court has -- has an obligation to explain the reason for the sentence.

And that holds, we believe, in the -- in the sentence reduction context of 3582(c)(2).

Ruth Bader Ginsburg: How much of an explanation would -- would be required? Let's say -- and take this very case.

What -- what -- what explanation would have sufficed?

Todd A. Coberly: Your Honor, we believe what would have sufficed -- I don't want to prejudge the case and tell the district court -- I don't want to presume what the district court was thinking, because that's the whole point, is we simply don't know. And so what we're asking is -- is for the Court to apply the rule it has already applied in Rita and Gall.

And that's -- it's simply sufficient explanation to allow for meaningful appellate review --

Anthony M. Kennedy: Suppose a case, not this case, suppose a case where the judge sentenced to the middle of the guideline -- or the old guideline range; then the new guideline range comes out and he does the middle of that. Explanation required?

Todd A. Coberly: In a -- in a typical case, Your Honor, I think in that situation, that would be what we're calling a proportional reduction.

All things considered, that would be -- it could be inferred from the record why the judge did what he did. However, I think there are certain circumstances in that particular situation where the judge might need to provide more explanation, and that would be where either party, either the -- the defendant or the government, had made non-frivolous arguments as to why there needed to be something different. But in the -- in the typical, in the run-of-the-mill, in a -- in a mine-run case, I do believe that that would be sufficient.

Anthony M. Kennedy: And there are tens of thousands of these hearings a year?

Todd A. Coberly: Well --

Anthony M. Kennedy: Of course, it depends on when the guidelines are changed, but --

Todd A. Coberly: Exactly, Your Honor. And -- and I believe the Sentencing Commission estimated that there -- that this particular amendment, 782, affected over 46,000 prisoners.

Anthony M. Kennedy: Does that -- should that be a factor in our decision; i.e., the obvious workload on the federal courts?

Todd A. Coberly: Well, Your Honor, I think it --

Anthony M. Kennedy: Or is that something we don't consider?

Todd A. Coberly: Well, I think it's certainly something you -- you can consider and I would ask the Court to consider this.

We're not asking for anything really that the district court is not already -- should be doing, and that is considering the -- considering the sentence reduction in light of the 3553(a) factors, and Section 1B1.10 of the guidelines, and then coming to a reasoned decision as -- as to why it's -- it's imposing a particular reduced sentence. All we're asking for is simply the district court to jot down a few words in most instances as to how that reasoning is.

So we don't --

Samuel A. Alito, Jr.: I don't quite understand in practical terms -- excuse me -- what that would mean.

So what if the court goes through each of the 3553(a) factors and says, well, you know, as to (A), it's a serious offense and it's serious enough to warrant a sentence of 114 months, and we need to have adequate deterrence, and I think 114 months is the amount that you need for adequate deterrence and so forth? Would that be enough?

Todd A. Coberly: It so -- it so much depends on context, Justice Alito.

And in that particular case, I don't think it would be enough without -- without more information in the record that that -- that that explanation by the district court would be tied to a particular fact within the record.

Anthony M. Kennedy: Let me just tell you, given the workload numbers you've just cited and your answer to Justice Alito, I'm becoming less convinced of your case.

Todd A. Coberly: Justice Kennedy, we -- our concern is that a simple check -- let's -- let's say, for instance, the AO-247 form, which we -- which we think is perfectly fine, had a -- had a -- had a checklist of the 353(a) factors and all that was required was a judge to check a box that he considered -- he or she considered those factors.

We don't think that would be enough. There needs to be just something minimal in the record.

Sonia Sotomayor: I'm sorry, I just don't understand what "minimal" means.

If you're answering Justice Alito the way you did, which is I can't imagine needing anything more than a judge saying I'm going to grant a reduction, but given the seriousness of this crime and how -- what you did, I think whatever number he picks, why that would become unreasonable or subject to more explanation.

Todd A. Coberly: And that's why I think, I mean, just a few words can matter, Justice Sotomayor.

Sonia Sotomayor: But you said to Justice Alito no.

Todd A. Coberly: Well --

Sonia Sotomayor: I'm asking -- that -- that's shocking to me, to be frank with you, because that answer would mean that the judge not only has to say that the crime was serious, what you did was serious, but I think 108 is not enough because it's the bottom of the guideline range; I don't think the guideline range should control. I mean, what more of an explanation does a judge have to do than to say it was a serious crime, 114 is the right amount?

Todd A. Coberly: I think just some indication that the judge actually had considered that particular crime.

And so simply -- all I'm saying is simply just saying -- I don't want to say that -- I don't want to create a rule that a district court judge in any instance --

Sonia Sotomayor: I'm afraid that -- you keep answering -- you're creating a rule that makes it impossible for district court judges to do anything but what you want.

Todd A. Coberly: And I certainly -- I certainly don't want that, Justice Sotomayor.

Sonia Sotomayor: Well, but that's where it's coming.

Let's -- let's start at here.

We know the district court at the original sentence said, I'm troubled by this crime and the degree of your participation in it.

It's a serious crime.

You were a very active participant in it. He still gave him essentially the low end of the guideline.

But why is it unreasonable for us to infer that in the resentencing he picked 114 because he remained concerned about the seriousness of this crime and your defendant's participation in it?

Todd A. Coberly: Your Honor, if -- if the district court judge in this particular case had said something to that effect of: I've looked at this case again, and considering the seriousness of the drug trafficking, and tied it specifically -- just said a word that -- that made it clear that that was tied specifically to that case, and I remain convinced that 114 months is reasonable, I think, in that situation, that would be plenty.

Sonia Sotomayor: Since the guidelines are advisory, what would make it improper for the judge to say, I don't care what the guidelines say, I think trafficking of this type is serious, and I think that 114 months is the right amount for -- for the seriousness of the crime and the deterrence. How could you appeal that?

Todd A. Coberly: I don't -- we would have a tough time appealing that, Your Honor.

I think that's well within the right of the district court.

Sonia Sotomayor: I guess my -- I -- I have a great deal of understanding that having the judge say something makes sentencing appear to the public as being less than arbitrary.

And there is a value in explanation that -- that -- that the justice system should consider. The question is how much and why checking off a box is not enough, because I take the judge at his or her word that when they check off the box, they've done what 3553(a), I think it is, requires.

But is there a difference between checking off a box and not checking off a box?

Todd A. Coberly: I think there is a difference, Your Honor.

And it -- it's the fact of an articulation that -- one can be convinced, one understands that the district court judge actually thought about this case and considered it, and simply checking a box I don't think does enough.

We -- we say it is -- it is --

John G. Roberts, Jr.: Go ahead, please.

Todd A. Coberly: It is not -- we're not asking for much.

And contrary to what the government has claimed that we're asking for, which is detailed or extensive explanations, we are -- I want to assure the Court we are not. We're simply asking for just a -- a bare minimal enough to -- to convince an appellate court that there was a reasoned basis for the decision.

John G. Roberts, Jr.: So if --

Todd A. Coberly: And, Justice Sotomayor, like you -- like you just said, the need to assure the public that our -- our judiciary is acting on -- on -- with sound legal principles in applying the law and not making arbitrary decisions.

It doesn't have to be much.

John G. Roberts, Jr.: What if he just says same -- same reasons as before?

Todd A. Coberly: Mr. Chief --

John G. Roberts, Jr.: Before he's done a fairly, you know, the usual, what's required under 3553, and those are the same -- what he's saying, those are the same things that is -- that are motivating him in this new context, same reasons as before?

Todd A. Coberly: Well, I think, in this particular case, Mr. Chief Justice, if -- if the judge had said that, that would pose a problem because, in -- in this particular case, tied back to the original sentence, it was clear that the district court judge had -- had tied his sentence and adopted the reasoning of the Sentencing Commission. And he sentenced at the bottom of the guidelines.

He referred to the reason the guidelines sentence in this case is high is because of the type of drug and the quantity of drug. And if he simply adopted that same reasoning, then one would expect that the -- his -- his -- his understanding of how --

John G. Roberts, Jr.: So you'd be fine? I mean, that gives you -- you say that would give you the grounds you want to present on appeal, just as you've articulated here.

So that ought to be fine as far as you're concerned?

Todd A. Coberly: I -- I think -- right. And we have to -- I have to remember -- we have to remember that we're talking here just about the -- a procedural component, and that is simply an explanation to get us to understand the judge's reasoning.

So, if there's -- if there's some indication of the judge's reasoning, we would then have something to grasp onto on appeal, and maybe we would argue that on appeal.

Ruth Bader Ginsburg: One aspect of this case, it strikes me as curious.

So this is an appeal from the resentencing; couldn't -- could this defendant, instead of going to the court of appeals, said: District Judge, would you please reconsider or clarify why the first time around you put me in the bottom of the range and the second time in the middle? You could -- could have moved for clarification before the district court.

Todd A. Coberly: Justice Ginsburg, we -- there -- there's no -- there's no specific rule in the Rules of Criminal Procedure that allows for that.

And so this was a final order and it was -- it was appealable. Now, in practice, would -- could one in theory make such a request? I suppose.

But given that there's nothing required in the rule, there's no -- there's no requirement that the district court has to actually reconsider that, other than just saying motion to reconsider denied, and in the context of this case, Mr. Chavez-Meza had filed his motion for a sentence reduction under 3582(c)(2) over a year before the -- the district court judge made his decision. And under the existing law, as -- as it was understood in the Tenth Circuit, we thought it was best to just take an appeal and have it remanded back, which is all we're asking for in this instance, is to have the case remanded back to the district court for consideration of the reduction in light of the 3553(a) factors and to provide some explanation for its -- its ultimate decision. Your Honor, our concern -- Your Honors, our concern ultimately is that the government's construction of the statute would allow just this particular case of -- of a class of defendants and class of cases not -- not subject to appellate review at all.

And there's no principal basis looking at the statute for such a rule. And as the Court understood in Dillon, the purpose of Section 3582(c)(2) was to give prisoners the benefit of the Sentencing Commission's determination that there was a systemic problem with a particular guideline. And precluding appellate review entirely of this type of case would undermine congressional intent.

Samuel A. Alito, Jr.: Why would this preclude appellate review? Isn't it pretty obvious what -- or couldn't the court of appeals infer that what the district court did was this: The district court originally thought 135 months was the right sentence -- that was the original sentence, right, 135?

Todd A. Coberly: Yes, Justice Alito.

Samuel A. Alito, Jr.: All right.

And so the district court thought: Well, the -- the range was lowered, and so I'm going to go down to 114, but taking into account the sentencing factors, I don't think it should go below 114. And I think that's the -- I don't know that you need to spell all that out. And if -- if that's what the court said, would that be sufficient? And, if that would be sufficient, why can't there be appellate review, just as -- based on what was done here?

Todd A. Coberly: I don't think in that particular case, Justice Alito, that would necessarily be sufficient because it just says in my opinion.

It does not -- the -- the decision does not tie that opinion somehow to the 3553(a) factors.

Samuel A. Alito, Jr.: Well, why doesn't it tie it to the 3553(a) factors? There's nothing -- there isn't an algorithm that tells you how to put those factors together or to quantify each one.

It's the judge takes into account the various factors, the seriousness of the offense, deterrence and so forth, and says this is the right number.

Todd A. Coberly: And all we're asking for, Justice Alito, is just a little bit following that, which is why the judge thinks that's the right number, not merely the fact that, yes, I considered the factors and this is the number I come up with, but just something to indicate why, just some --

John G. Roberts, Jr.: I think you'd be -- I think you'd be better off with the other rule.

I mean, if you have something that looks out of the ordinary in the -- in the resentencing and the judge hasn't said anything, I think that gives you a stronger basis for appeal than -- you say, well, all he's got to do is have a couple of words. Well, a couple of words and then you're out of -- out of the appellate court.

But if he doesn't say anything, you've got a stronger argument. He hasn't justified it.

It's not that there's no basis for appellate review.

It's that you have a strong case because nothing's on the record to support what has been done.

Todd A. Coberly: And that's exactly the position we're in, because there was nothing in the record and we felt like we had a strong case on appeal to say at least give us something.

We couldn't -- we were precluded from -- from trying to -- the problem here is --

John G. Roberts, Jr.: Yeah, but it depends on the -- the range of the departure. In other words, if whatever you think is what it should look like or the norm, you mention in your brief an argument about where you thought it should be proportionately, and if it's out of whack, and nothing is said, it seems to me you have a stronger case than what you've suggested is what -- you -- you lose if he puts in just a few words that shows that he considered the pertinent factors.

Todd A. Coberly: Well, the concern here is -- is ultimately with ensuring the integrity of the process, Your Honor, and making sure that -- that there was some reason that was given. And -- and when -- when there is no reason given, it -- the public and, frankly, my client lacks confidence that that decision was actually made on a sound basis of law as opposed to --

Stephen G. Breyer: Well, what is he supposed to say? He did give reasons.

He says having considered such motion -- that's your motion -- and taking into account the policy statements set forth at U.S. Sentencing Guideline, dah, dah, 1B1.10, and the sentencing factors set forth in 18 U.S.C. 3553(a), to the extent they're applicable, I reduce the sentence to 114 months. All right? He gave a reason.

That's the reason.

Now what else is he supposed to say?

Todd A. Coberly: Well, Your Honor, we -- we disagree that that's actually a reason.

Stephen G. Breyer: No, no.

What -- what else is he supposed to say?

Todd A. Coberly: What else he -- we believe he is supposed to say is because -- because of the particular nature of the crime here that Mr. -- I don't want to tie it to this particular defendant -- but the defendant was involved in drug trafficking, there has been cases where the -- where -- similar to ours, they've been remanded back, the district court provides a simple sentence, such as given this defendant's recidivism and his wrapping up two -- two young innocent women in this crime, I find that this --

Stephen G. Breyer: So we have in the record what -- what he did.

That isn't a problem.

And -- and judges do when they choose -- that's why I've never understood the part of -- what they do is they look at the crime and they look at the defendant and have a range here, and they select the point that they think is appropriate. What else can you say besides that?

Todd A. Coberly: Something, Your Honor, that -- that ties it as to why they think it's appropriate.

Stephen G. Breyer: Well, then I don't know why.

Elena Kagan: Well, isn't --

Stephen G. Breyer: They say, I -- I've seen a lot of cases.

I -- I -- I see what -- I look at the conduct.

I look at the defendant. And this is what strikes me as appropriate. And now what else? I mean, you could not tell -- that's the truth of the matter.

So what else can he say besides that that is truthful?

Todd A. Coberly: How he or she can actually considered the 3553 --

Stephen G. Breyer: He says, I considered it.

How do you consider it? What you do is you read it and you think about it.

What else?

Todd A. Coberly: Something tied to the particular facts of the case.

Elena Kagan: So is what you're saying, Mr. Coberly, essentially that the judge should say any lower sentence would not meet the seriousness of this crime?

Todd A. Coberly: I mean, I think that would be helpful, Justice Kagan, but I'm not sure that that actually -- those words either would actually get to our point, which is that there needs to be something that the public can be confident that the judge actually considered this particular case.

Elena Kagan: Well, that -- that's this crime.

The judge is saying I've looked at this crime, and -- and I don't -- I can't imagine, given the seriousness of this crime, going below 114 months.

Todd A. Coberly: That would be a close call, Your Honor.

And -- and -- and it's just simply something that -- that allows the -- the defendant and allows the public to understand that the -- yes.

Elena Kagan: I don't understand why that would be a close call.

I mean, what else are you supposed to say other than -- I can understand why you want the judge not just to check a box.

I can understand why you want the judge to say, I've looked at the seriousness of this crime; I think it going below 114 months would not be in keeping with the seriousness of this crime. What else do you want a judge to say?

Todd A. Coberly: Something about the seriousness of the crime tied to the particular facts of that crime to ensure that the judge is actually considering and making a reasoned decision based on --

Ruth Bader Ginsburg: You -- you seem to be having some kind of a presumption that the reduction should be proportional.

So, if the original sentence was at the low end, the reduced sentence should be at the low end. But what statutory provision requires proportionality?

Todd A. Coberly: Thank you, Justice Ginsburg. Our -- our argument regarding proportionality, we're not arguing -- I want to make clear -- we're not arguing that there should be a proportionality.

We're simply recognizing that when -- when there is proportionality and the record is silent, we think that in the mine-run of cases one can -- one can rest assured that the district court judge here simply applied the exact same reasoning that it applied at the original sentencing context to the -- the amended guidelines range. So, for instance, you know, if someone was sentenced at the top end of the guidelines, there was no new information that was presented by either party in the sentence reduction motion, and the district court judge in a silent order adjusted the -- the sentence to the top of the amended guidelines range, we think that that would be sufficiently clear in the record, and that's --

John G. Roberts, Jr.: What if it was the -- I think a lot of your objection, right, and a lot of the appeal of your objection is the boilerplate language.

What if the judge had actually, you know, written it out? I mean, it seems the way you're saying it, the -- the actual language, he says I've taken into account the policy statement, I've taken into account those factors, to the extent they're applicable, this is what I think. I think if you had seen that in an order written out, you know, that based on what you've said, that would seem to be sufficient. I -- it -- it seems to me your objection is -- in other words, you don't -- you don't really believe it when it's just a check in a box. You think, well, he really hasn't done that; he's just checking the box. But what would be wrong with the language that he's checked in the absence of the -- the boilerplate aspect?

Todd A. Coberly: I think the -- I think, Your Honor, that we would have the same problem.

It's not with the fact that it's preprinted on a form.

It's -- it's -- it's that there was no additional reasoning. And -- and in this case, the AO-247 form has a spot on the second page for additional comments.

And --

Stephen G. Breyer: Like what? You -- you've had a lot of experience probably with sentencing cases, much more than I have.

All right? So let's take an original sentencing. And the reason there is -- is -- there is discretion within the range is because what judges used to do, and typically do, is they just decide.

You know, there's -- there's nothing you can say. All right.

So -- but they're supposed to.

So what do they say, what kinds of things?

Todd A. Coberly: They say, Justice Breyer, similar -- I mean, at an original sentencing, there's arguments typically presented by both sides as to a particular sentence.

And in tying it to this case, the government actually made an argument as to 135 months.

And the district court judge said the reason the guideline sentence is high in this case is because of the quantity of drugs, the type of drugs.

I consider in my experience that the -- the -- the problem with methamphetamine, and I'm adopting essentially the district court's decision.

That's all they say, and that's enough. And if I may reserve the rest of my time.

John G. Roberts, Jr.: Thank you, counsel.

Todd A. Coberly: Thank you, Your Honor.

John G. Roberts, Jr.: General Rosenstein.

Rod J. Rosenstein: Thank you, Mr. Chief Justice, and may it please the Court: There are three reasons why this Court should uphold the district court's discretionary decision to grant a sentencing reduction and to impose a new sentence in the bottom quartile of the applicable sentencing guideline range. The first reason is about judicial integrity.

When a federal judge issues an order stating that the court considered the relevant statutory factors, appellate courts presume that the district court did precisely what it said. The second reason is the background principle.

In the absence of a statutory mandate, federal judges are not required to provide reasons for imposing a sentence within the lawful range. And the third reason is the statutory text.

Congress chose not to deviate from the background rule and require a statement of reasons for a sentence reduction motion under Section 3582(c)(2), in contrast to the express requirement in Section 3553(c).

And this Court should respect Congress's judgment.

John G. Roberts, Jr.: What if they --

Sonia Sotomayor: General, can --

John G. Roberts, Jr.: -- a judge is -- has had, you know, 600 of these resentencings, every time just checks the box, 600, he's done nothing but check the box, and the results are a little off; sometimes it's high, sometimes it's low; you can't really tell why? Do you have the same position?

Rod J. Rosenstein: Your Honor, we -- we believe that the premise there that the district court is merely checking a box is a mistake.

The form reflects what the district court is required to do by statute.

And so there's no reason to presume here that the court is checking a box and not actually doing what's required.

John G. Roberts, Jr.: Even if it's -- even if he's done it 600 times, never done anything but check the box, you still presume that he's giving the careful consideration in each of those cases?

Rod J. Rosenstein: Well, in no case, Your Honor, is the court merely checking a box. The court is checking a box indicating whether it's granting or denying the motion, but then it's actually required to compute the guideline range and then select a new sentence. And so it's not merely a matter of checking a box.

The court is actually making a conscious decision about what sentence to impose within that new guideline range.

Sonia Sotomayor: General, do you have a different position with respect to a denial of a motion for a reduction? If a judge just says sign this form and -- but denied the reduction, would you hold the same position?

Rod J. Rosenstein: Your Honor, there have been different variations of this form. The form that's used in this case, we believe, would clearly suffice because the form --

Sonia Sotomayor: No, no, no.

Take my fact situation.

Rod J. Rosenstein: Yes.

Sonia Sotomayor: The judge denied -- basically denies -- after looking at everything, I deny this motion for reduction.

Rod J. Rosenstein: With or without --

Sonia Sotomayor: Does that permit intelligent appellate review?

Rod J. Rosenstein: Your Honor, if the court had completed the form and checked the box indicating it had denied the motion, the court would have certified by signing that form that the court had gone through the appropriate considerations, that is, they considered the 3553(a) factors and considered the policy statement.

Sonia Sotomayor: So how about if a judge in the original sentence gives the low end of the guideline but in the -- in the revised reduction gives above the original guideline but below the sentence he gave now? Would that require more of an explanation than signing this form?

Rod J. Rosenstein: No, Your Honor, we don't believe it would, because that would be a lawful sentence within the guideline range specified by the Commission and would reflect, as this Court said in Rita, the presumption -- pardon me -- that in a typical case the court has determined -- essentially has adopted the reasoning of the Commission and has done what the judge is supposed to do.

Sonia Sotomayor: The one thing I hate about absolute rules in this area, dislike intensely, is that why shouldn't we trust the court of appeals to determine how much information it needs or doesn't need to give meaningful appellate review? Some courts have said if you refuse to depart completely, you should explain why. Others have said but if you don't and you pick a sentence within the guidelines, we will infer that you've said enough if you signed the form. Others have said you should always give a little bit more. Another character -- category of court of appeals have done what the Tenth Circuit has done, but I think there's only two that have done what the Tenth Circuit has said. Why isn't it always up to the court of appeals to determine how much it needs to determine whether adequate review can be given?

Rod J. Rosenstein: Well, Your Honor, the -- this Court in Gall indicated that with regard at least to departures, courts of appeals may, but are not required, to impose a presumption of -- of reasonableness. But with regard to the issue of what the court of appeals is required to do, I think, Your Honor, you're correct.

The court of appeals looks to the record and makes a determination whether or not based on the entire record --

Anthony M. Kennedy: Look -- looking at this record, do you know why the district judge did what he did?

Rod J. Rosenstein: I believe we --

Anthony M. Kennedy: And -- and do I know -- I'm not sure why the district judge did what he did.

I can guess.

Rod J. Rosenstein: Justice Kennedy, I believe we know just as well following the sentence reduction motion as we did following the original sentencing.

And, in fact, if the Court looks to the Joint Appendix at page 26, the original sentencing hearing, which I believe is a typical sentencing hearing, the district court said that it had considered the appropriate factors and selected a sentence of 135 months. Now the defendant has not indicated he is -- he has not confirmed how much information he thinks he needs.

But if you look to that original sentence --

Anthony M. Kennedy: Well, do -- do you think that in that original sentence it was because it was -- the sentence was at a particular place in the guidelines, i.e., the low end?

Rod J. Rosenstein: No, Your Honor, I don't believe so.

Remember, keep in mind, of course, we're in a post-Booker context here. The district court is guided in part by the guidelines but is required to consider all the relevant 3553(a) factors, and at the original sentencing, that's precisely what the court said. The court said he had taken into account the history and characteristics of the defendant and the need to impose a sentence sufficient but not greater than necessary to achieve the purposes of sentencing. That is a somewhat conclusory --

Anthony M. Kennedy: But that's -- that's true in every case.

Rod J. Rosenstein: Sure.

Anthony M. Kennedy: But why this number? Why wasn't -- why wasn't this -- if -- if he'd have done at the low end of the new revised guideline range, that would have been okay, wouldn't it?

Rod J. Rosenstein: Yes, Your Honor.

Anthony M. Kennedy: Without any explanation?

Rod J. Rosenstein: Correct.

Anthony M. Kennedy: Well, then why isn't an explanation required here when he does something different?

Rod J. Rosenstein: Because of the background rule, Your Honor.

Again, this -- the sentencing guidelines were adopted in 1984 against a backdrop of long-standing precedent of this Court, reflected most significantly in the Dorszynski case, where the Court indicated that in the absence of any statutory mandate, at common law, the court -- district courts had discretion to impose sentences anywhere up to the statutory maximum.

Stephen G. Breyer: Can you explain --

Elena Kagan: I guess I'm finding it a little bit hard, Mr. Rosenstein, to understand your understanding of the background rule, because my understanding of the background rule comes from Taylor, where it said: "Where, as here, Congress has declared that a decision will be governed by consideration of particular factors, a district court must carefully consider those factors as applied to the particular case, and whatever its decision, and clearly articulate their effect in order to permit meaningful appellate review." So we're in one of these "where, as here" situations where Congress has declared that a decision is going to be governed by consideration of particular factors.

And -- and Taylor seems to say: Look, what we need for intelligent appellate review is for the district court to clearly articulate why he did what he did. Now it doesn't have to be lengthy.

It can just be pointing to, you know, this was a serious crime, here's -- here's why, the end. But -- but there has to be something, says Taylor.

No?

Rod J. Rosenstein: Your Honor, we respectfully submit that Taylor does not apply in the context of sentencing.

It didn't overrule Dorszynski.

And if it had, Your Honor, we submit that Rita well might have come out differently, because this Court ruled in Rita in 2007 that no explicit analysis is required of the 3553(a) factors. There are -- if you break them out, there are 15 distinct factors in 3553(a).

And if there's a resentencing, there are also three additional factors established by the policy statement, 1B1.10.

Stephen G. Breyer: You did at the beginning -- I mean, there is something I don't understand about this.

I -- I tend to agree with you that if we suddenly start saying you have -- I mean, I've seen hundreds, if not thousands, of -- of district court decisions which take the following form: Motion for summary judgment denied, okay, or motion for this or that denied. And if we're suddenly going to say, well, this has to have more than that word "denied," I don't know what's going to happen. So I tended to follow what Justice Sotomayor said.

Sometimes the court of appeals would say we need to know more and sometimes they wouldn't. But I think what he's arguing, and I may be missing something, is that the statute says in 3553(c)(1) that if the sentence is within the guideline range and it exceeds 24 months, the court at the time of sentencing shall state in open court the reason for imposing sentence at a particular point within the range. Now it doesn't say that when you're reconsidering.

Rod J. Rosenstein: Correct.

Stephen G. Breyer: But it does say it at the beginning.

And so the background rule isn't that you don't have to give a reason. The background rule is just what I read. So how does it work?

Rod J. Rosenstein: Yes.

Stephen G. Breyer: I want to know how it works and, after all, if that's the rule, if I'm right that that is the rule, how do they do it, and shouldn't you have whatever they have to do there the same here?

Rod J. Rosenstein: No, Your Honor. Respectfully, the -- the background rule that I refer to is the rule in the absence of any statutory --

Stephen G. Breyer: Well, here is a statute.

I'm saying -- my question is, how does that work in the ordinary sentencing case where we've all said, gee, sometimes you just can't say more.

Well, the statute seems to say more. And then, if it -- whatever that is, why shouldn't it be the same here? And I think what they're saying is you don't have to say it's the same if it's proportional because it's obvious.

But if it isn't proportional, it isn't obvious. And so you should have to say something.

Okay.

So what is the --

Rod J. Rosenstein: Yes --

Stephen G. Breyer: -- response? What is the response?

Rod J. Rosenstein: -- Justice Breyer. And the answer to that, Justice Breyer, is that with regard to sentences that are governed by 3553(c) --

Stephen G. Breyer: Yeah.

Rod J. Rosenstein: -- there are actually three levels of explanatory requirements.

The first is the requirement to state reasons in open court, which is 3553(c).

Stephen G. Breyer: Yeah.

Right.

Rod J. Rosenstein: The second is for a sentence with a range above 24 months --

Stephen G. Breyer: That's right.

Rod J. Rosenstein: -- you provide a reason for a particular point in the range, as you articulated.

Stephen G. Breyer: Yes.

Rod J. Rosenstein: And the third is for a sentence outside the guideline.

Stephen G. Breyer: Yeah, yeah, right. I'm only interested in the particular point within the range.

Rod J. Rosenstein: Correct.

But, Your Honor, this provision, 3553, was adopted as part of the Sentencing Reform Act in 1984 contemporaneously with Section 3582(c).

And in 3582(c), the Congress decided not to incorporate the 3553 requirements. And that is why we respectfully submit the 3553(c) requirements do not apply under 3582.

It expressly incorporates 3553(a), which we recognize and the district court acknowledged, but it does not incorporate the procedural requirements. Now this Court affirmed that in the Dillon case, where --

Stephen G. Breyer: Yeah, but I guess that's peculiar.

What's the reason for that? Judge, when you give a sentence of 18 to 24 -- you know, the guideline is 108 to 122 months. You pick out 114.

And you have to give your reason for the particular point. But if you do precisely the same thing on resentencing, you don't.

But why?

Rod J. Rosenstein: And the reason -- the answer, Your Honor, as articulated by this Court in Dillon, is that we are not at a formal resentencing proceeding here.

We are at a motion for a reduction, which is -- this Court recognized in Dillon is not governed by the constitutional or remedial holding of Booker. It's an act of congressional lenity, of legislative grace, and Congress in enacting that provision was entitled, we submit, to permit the court to do it in an expeditious way.

And --

Sonia Sotomayor: So assume there wasn't a form and that the judge's real reason was that he thinks blacks who commit this kind of crime should be punished severely. How are we supposed to know or check, or the public know or check, that racism didn't play a part in this? I'm not assuming that any judge would do this, but I'm assuming --

Rod J. Rosenstein: Yes.

Sonia Sotomayor: -- some impermissible motive is -- is at play.

If we don't have any statement by the judge of what he or she is doing or some basic reference to why, how do we know?

Rod J. Rosenstein: And, Your Honor, I would give two answers to that.

The first is that no matter what the judge says, you never know what the judge is thinking and doesn't articulate. But the second is that, under Walton v. Arizona, a long-standing principle, courts presume that district courts know the law and apply it faithfully.

If it were to the contrary, we would face this issue really in every case.

You never know the unstated reasons; you know only the stated reasons.

And in this case --

Sonia Sotomayor: But if you know no reason, which is what Justice Kennedy started with, we don't really know why he picked 114.

Rod J. Rosenstein: Well, we submit, Your Honor, that you do know enough, just as in any ordinary original sentencing under Rita, you know that the court was familiar with the facts and circumstances of the crime, you know that the court evaluated the 3553(a) factors and the policy statements.

You have the comments the district court made at the original sentencing, which indicated that the court was aware the defendant had other uncharged conduct.

Sonia Sotomayor: So -- so let's do a different hypothetical.

The judge says: I gave the 114 because he got convicted of a prison in -- infraction that was at the highest level.

And, in fact -- not the facts of this case -- the prison infraction was at the lowest level and didn't even result in anything except a warning. How would the appellate court know that the judge made a factual assumption that was erroneous in picking that 114?

Rod J. Rosenstein: In your hypothetical, Justice Sotomayor, the court has articulated that reason?

Sonia Sotomayor: Yes.

Rod J. Rosenstein: Yes.

Well, in that case, you --

Sonia Sotomayor: But what -- how do we know if they don't articulate --

Rod J. Rosenstein: Right.

Sonia Sotomayor: -- their reason for doing something, that they're not -- that it's not based on an erroneous factual basis?

Rod J. Rosenstein: So, once again, we can't deal with what the court doesn't say, but if the court did express --

Sonia Sotomayor: No, but we should. I mean, when we're making a rule that says you never have to, as the Tenth Circuit has indicated, then we don't know if an impermissible factual or legal basis motivated the judge. And with factual, it's not intentional; it's just wrong.

Rod J. Rosenstein: If there were any evidence in the record, Justice Sotomayor, to indicate that such an error had been made, the defendant would be permitted on appeal to argue procedural unreasonableness, just as this Court contemplated in Gall.

John G. Roberts, Jr.: If there were -- if your --

Elena Kagan: Can I go back --

John G. Roberts, Jr.: If your position prevails, why would any district judge ever say anything about why he -- his position on resentencing?

Rod J. Rosenstein: We -- we don't presume, Your Honor, the district courts are motivated solely by the desire to be -- to avoid appellate review.

John G. Roberts, Jr.: Well --

Rod J. Rosenstein: I believe a district court, as -- as was contemplated in the Rita opinion, it depends on the circumstances. The district court can make its judgment whether or not it believes that the facts are such that it merits a more detailed opinion, but if it's a routine, typical, run-of-the-mill case, as this one was, and the court looked to the original sentencing, where it had said very little, we believe it's appropriate under these circumstances for the court to impose the appropriate sentence and simply say it had considered the factors.

John G. Roberts, Jr.: Well, a judge who -- under what circumstances was a judge -- would a judge who did just that be subject to reversal?

Rod J. Rosenstein: It would depend upon the record, Your Honor.

As in all cases, the appellate court would look to the entire record.

Given the presumption of regularity, which we submit is accorded in all cases, the defendant who appeals this would have to identify some error in the record, something that would merit appellate review.

John G. Roberts, Jr.: Well, like -- like what? I'm -- I'm saying the judge doesn't say anything, and you say the presumption is that he adequately considered all of the factors and all that.

Rod J. Rosenstein: Correct.

John G. Roberts, Jr.: What type of evidence in the record would suggest that that wasn't the case?

Rod J. Rosenstein: Well, if you're talking only about procedural reasonableness, as we're talking about here, you look to whether the guidelines were properly considered.

You would look to whether or not there were other defendants in the case who received disparate sentences.

You'd have to find something in the record that indicated that there had been some impropriety in the sentencing proceeding.

Anthony M. Kennedy: So, as -- as I understand it in this case, let's say there -- there are any number of choices, but let's say there are three choices: One, the judge has kept the original sentence.

Two, he put it at the low end of the guidelines.

Three, he put it at the high end of the new guidelines but no greater than the earlier sentence. Any one of those is okay?

Rod J. Rosenstein: Any one of those is okay, Your Honor, as long as there's no --

Anthony M. Kennedy: No reasons required?

Rod J. Rosenstein: Well, the reasons are required.

The court is required to apply the 3553(a) factors and the policy statement, but in the absence of any indication the court had failed to do that, we submit that that would suffice, even in an original sentencing under Rita.

Anthony M. Kennedy: But in -- in -- in all of the circumstances on the revised -- after the sentencing guidelines had been revised, in my three alternatives, in -- in none of those cases is any reason required?

Rod J. Rosenstein: In -- in all cases, the court is required to have reasons, premised on the --

Anthony M. Kennedy: The statement -- in none of those cases need the court state his reasons, under your view, for the resentencing?

Rod J. Rosenstein: In none of those cases would it be required to cite a specific reason for a sentence within the guideline range.

That's correct, presume -- provided --

Elena Kagan: And your -- your understanding where -- the language that I read you in Taylor where it said that there is some necessity to state some amount of reasoning, what do you think that that applies to?

Rod J. Rosenstein: Your Honor -- Your Honor, we believe that the Taylor case is not generalizable.

And as this Court said in Rita, the amount of explanation required under the guidelines depends upon the circumstances. If it were otherwise, then we submit --

Elena Kagan: Well, is Taylor just about the statute? In Taylor, is that all it's about? Because, certainly, Taylor seemed to suggest a broader rule.

It said, you know, where, as here, Congress has directed a district court to consider particular factors, in order to have effective appellate review, we need some brief statement about why the court has come out the way it has based on those factors.

Rod J. Rosenstein: So we believe, Your Honor -- and there are two answers to that. The first is that if you look to the concluding paragraph in the Taylor opinion, the Court indicated that the trial court in that case relied on factors that were unsupported by the record.

So the record itself actually indicated that there was an error that was made by the district court in Taylor. But with regard to the issue of what factors need to be considered, that is ultimately an issue, we submit, of legislative intent. And in this case, in Section 3582, Congress decided to permit an expedited process and not to require all the procedures that Congress created for original sentencing.

Elena Kagan: There's a -- there's another statutory section, which is 3583(e), which directs courts to consider the 3553(a) factors, those -- these same factors that are involved in this case, when terminating periods of supervised release. Do you think a judge can terminate a period of -- of supervised release and send somebody back to prison without any statement of reasons?

Rod J. Rosenstein: Your Honor, hypothetically, the court would be permitted to do that only if the record were sufficient --

Elena Kagan: I'm sorry. Hypothetically what?

Rod J. Rosenstein: Well, in some cases, Your Honor, the record might be clear as to what the basis was, but certainly there would have to be a basis for the court to make that decision.

Elena Kagan: Well, a basis.

But the question is, do you think that the court has to state reasons to send somebody back to prison under 3583(e)?

Rod J. Rosenstein: Your Honor, I don't have the language in front of me.

I apologize.

Elena Kagan: It doesn't say anything about explanation.

So I'll give you the relevant things.

Rod J. Rosenstein: Right.

Elena Kagan: It basically says you have to consider the 3553(a) factors.

But then it does not say that you have to explain anything. So the question is whether there's a background rule that says --

Rod J. Rosenstein: Yes.

Elena Kagan: -- of course, before you send somebody back to prison like that, you have to at least say something.

That's the question.

Rod J. Rosenstein: Yes.

And -- and, again, Your Honor, we believe it would be a question of legislative intent, and we believe that with regard to 3582, it's clear that Congress contemplated an expedited procedure that would not incorporate the reasons required in 3553 and would simply be subject to the background rule.

Ruth Bader Ginsburg: Can you tell us --

Stephen G. Breyer: So can we do this -- can we do --

Ruth Bader Ginsburg: -- a little something about the form? What -- what was the genesis of that, this Administrative Office Form, what, AO-247?

Rod J. Rosenstein: Correct, Your Honor.

Ruth Bader Ginsburg: How did that come to -- to be?

Rod J. Rosenstein: My understanding, Your Honor, is that form was developed by the Administrative Office of the U.S. Courts, along with input from the Sentencing Commission, in order to expedite these proceedings and ensure that appropriate information was reflected in the record. Interestingly, Your Honor, the original version of the form, I believe from 2008, did not include the language clarifying that the court had considered the 3553(a) factors and the policy statement. In fact --

Stephen G. Breyer: All right.

It --

Rod J. Rosenstein: -- one of the lower court opinions -- pardon me?

Stephen G. Breyer: I just want to go back for a second to Taylor.

My understanding is that Taylor is speaking generally in 1988, and it's considering the Speedy Trial Act. Subsequent to that, I believe we decided a case called Rita.

And I thought in Rita, we addressed specifically this question at an original sentencing.

And what we said, yes, there has to be some explanation, but the length, the detail -- when it's within the guideline, not outside the guideline, and I think that was the intent of the Commission. Outside the guideline, you better explain it.

Inside the guideline, in this range, it says, that the statute or precedent does not insist upon a full opinion in every case.

The sentencing judge should set forth enough to satisfy the appellate court that he has considered the arguments and has a reasoned basis, but the length, the detail, the content, even when to write is basically up to the judge. Then, when the judge does that, if the appellate court needs more, it can ask for more.

Now I thought that was what Rita -- but I haven't looked at it in a long time -- so I thought that's what Rita was saying. And -- but there's nothing -- is there anything wrong with that?

Rod J. Rosenstein: No, Your Honor.

And I believe that's consistent with Taylor in this respect, and that is that the principle --

Stephen G. Breyer: Well, I hope it was consistent.

But if it wasn't consistent, it is the later case and does deal specifically with sentencing guidelines, as opposed to dealing with the Speedy Trial Act.

Rod J. Rosenstein: Yes, Your Honor.

And I think the -- the -- the point of commonality is that the principle of Rita is that if the district court is acting within the normal range, the typical case, less explanation is required. When the court is doing something unusual, outside the norm, more of an explanation is required.

Taylor, of course, is a binary choice.

The case is dismissed either with or without prejudice. Here, we're talking about a range where the courts have established that any selection within that range could be a reasonable sentence --

Elena Kagan: Well, that's true, but this case involves what the Petitioner calls a disproportionality; that at the first instance you got the low end of the range and at the second instance, you're no longer at the low end of the range. And so the question that Rita raises is, in a case like that, is something a little bit more required, so that the judge says, you know what, I don't want to be at the low end of the range in -- in -- given this new range, because of the seriousness of the offense.

And the judge doesn't have to do that at length, as Rita said, maybe the judge doesn't even have to do it in writing, as long as the judge says something to give both the defendant and the appellate court some understanding of why the judge is doing what the judge is doing.

Rod J. Rosenstein: Yes, Your Honor.

And we respectfully submit that there is no magic to this concept of proportionality.

This is not something that the defendant has rooted in any statutory requirement or even in any judicial finding. This idea that it needs to be proportional is simply something that they are trying to sell to the Court but we submit really shouldn't be involved.

Elena Kagan: Well, it raises a question, don't you think?

Rod J. Rosenstein: No, I do not, Your Honor.

The reason I do not is because the -- the principle here is that the guidelines are only one relevant factor. If we were in a Booker world, perhaps it would have more significance, but in a post-Booker world, it's clear that that district court in choosing 135 months was not merely saying I will always pick the lowest possible sentence --

Elena Kagan: Quite right.

And that's why the -- the court can say I don't think -- I don't want to go with the lowest point in the new range, and -- and that's absolutely the prerogative of the -- the district court. But the question that the Petitioner raises is just whether the judge has to say, I've thought about this question and I don't want to be at the low end of the range anymore because of the seriousness of the defense -- of the offense or because of something else.

Rod J. Rosenstein: Correct, Your Honor.

Elena Kagan: It just seems a -- it's a minor requirement but one that seems as though it would help the appellate court quite a lot to know why the judge had chosen a sentence that was no longer at the low end of the range.

Rod J. Rosenstein: But I believe, Your Honor, that if you were to look at Rita, that the challenge that they are posing here really would undermine the premise of Rita, which is that for a typical sentence where the court chooses a point within the range, there is no requirement for detailed elaboration of the reasons. And why would more be required in 3582, which this case has -- this Court has indicated in Dillon actually is an abbreviated proceeding, not subject to Booker.

Why would the Court require more under 3582 than it would under 3553 at an original sentencing? So we respectfully submit that that's essentially what the defendant is asking the Court here to do, is to expand the explanatory requirement not only to the Rita standard but even beyond it. And I think if the Court were to look to the original sentencing in this case, as I indicated, I believe that would not satisfy the defendant. In fact, they -- they have indicated in their reply brief that even the one sentence the government proposed, the clarifying sentence we proposed in our brief at page 40, the defendant in their reply brief at page 19 indicates that would not be sufficient for him. So we really don't know what type of detail would be satisfactory, but we respectfully submit that if you were to take their argument to the logical extreme, it would require in every case for the court to address every conceivable factor, of which, as I say, if you break them out, there are 15 just in 3553(a).

Three additional factors added by the policy statement. And so what we believe, Your Honor, is that what the district court did here is more than sufficient.

The court made clear on the record that it had considered the relevant factors under 3553(a).

It had considered the factors in the policy statement. The court was familiar with the case by virtue of having handled the original sentencing and imposed a sentence that is reasonable and for that reason should be upheld. If there are no further questions.

John G. Roberts, Jr.: Thank you, counsel.

Rod J. Rosenstein: Thank you, Your Honor.

John G. Roberts, Jr.: Mr. Coberly, you have four minutes remaining.

Todd A. Coberly: I'm surprised that the government suggests that Rita or -- excuse me -- Taylor does not apply in the sentencing context.

The times this Court has relied on Taylor, it has been in the sentencing context. This Court has relied specifically on Taylor in Rita in stating, "The sentencing judge should set -- set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decision-making authority.

See e.g. United States v. Taylor. Nonetheless, when a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation." That's exactly all we're asking for. And we understand that we're not asking for a lengthy explanation but that when Congress has channeled the exercise of the discretion of the district court judge by directing it to consider certain factors, the role of the appellate court is to ensure that the district court actually looked at those factors. It's not that it's necessarily -- the outcome is necessarily wrong but that it actually applied those factors in order to comply with the directives of Congress.

Samuel A. Alito, Jr.: What would be the minimum that would suffice here?

Todd A. Coberly: I think the minimum that would be -- would suffice, Your Honor, in a run-of-the-mill case is I looked -- I'm -- if it's disproportionate, as it is here, the reason I imposed a sentence of 114 months or whatever it is, because of the seriousness of the crime of, you know, the defendant's involved in methamphetamine tracking -- trafficking, something to that effect. Again, I don't want to telegraph to the district court what we think.

We don't want to presume because we simply don't know.

Samuel A. Alito, Jr.: Well, you're asking us to impose a standard.

And -- and you could -- I -- I think it's entirely fair to ask you what would be the minimum that would be required. So you gave me an answer.

The judge would -- if the judge made reference to methamphetamine trafficking, that would be enough?

Todd A. Coberly: I -- I think if -- if there was something that was tied to the particular circumstances of the case, but, again, I mean, the -- the reality here is that's up to the appellate courts.

That's up to the district court judge in the first instance, and then it's up to the -- the appellate courts to determine whether that was sufficient reason to divine the -- the actual reason of the district court judge.

Elena Kagan: But in stating a standard, you're essentially asking us to repeat those words that you just read from Rita, is that correct?

Todd A. Coberly: Exactly, Your Honor. We're -- we're -- we're not asking anything different than what Rita already requires. And, Justice Alito, your -- your cite to Taylor in -- in your dissent in Gall recognized that the reason it's important for a judge to state reasons to ensure that the district court --

Stephen G. Breyer: What Rita did say on this point, I think -- point within the guidelines that applied, the whole paragraph, which you didn't really have time to read, but the paragraph there talks about sometimes a judicial opinion responds to every argument; sometimes it does not. Sometimes a judge simply writes the word "granted" or "denied" on the face of the motion; other times the -- and the reasons make everything clear.

Sometimes they leave -- the law leaves much in this respect to the judge's own professional judgment. You have a borderline case.

I mean, I -- I don't know whether more should be called for.

And that's why I was looking around of a way of resolving this.

And it seemed to me one way to resolve it would be to say you can write pretty minimally, but the court of appeals can ask for more if they need to.

Todd A. Coberly: I think that's exactly right, Justice Breyer.

Stephen G. Breyer: You do? (Laughter.)

Todd A. Coberly: The problem -- the problem with the government --

Elena Kagan: But when you say minimally, you mean more than just check the box, right?

Todd A. Coberly: Yeah, absolutely.

I mean, there has to be something -- there has to be something more than -- than just simply saying I considered the factors.

There has to be something, and this is how I applied the factors, something minimal. We're -- we're not asking for much. We're asking for crumbs here.

And I see that my time is up.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.