United States v. Donald Sims ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0062n.06
Case No. 18-3837
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 29, 2020
UNITED STATES OF AMERICA, )
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
DONALD SIMS, ) OHIO
)
Defendant-Appellant. )
BEFORE: SILER, STRANCH, and NALBANDIAN, Circuit Judges.
SILER, J., delivered the opinion of the court in which NALBANDIAN, J., joined.
STRANCH, J. (pp. 8–16), delivered a separate dissenting opinion.
SILER, Circuit Judge. In 2016, Donald Sims—a convicted felon—sold a firearm and
ammunition to a confidential informant (“CI”) in violation of 18 U.S.C. § 922(g)(1), his second
felony possession offense. Sims was arrested and indicted for the offense, and pleaded guilty
without a plea agreement. The district court at sentencing emphasized Sims’s prior 34-month
sentence for his first felony possession conviction, and the additional 10-month sentence he served
for violating his supervised release in the prior case. The district court then varied upward from
the Sentencing Guidelines’ recommended 27- to 33-month sentence and imposed a sentence of
48 months’ imprisonment. Sims now appeals the substantive reasonableness of his sentence.
We AFFIRM.
Case No. 18-3837, United States v. Sims
I.
In 2010, Sims was convicted of being a felon in possession of ammunition and sentenced
to 34 months’ imprisonment followed by a three-year term of supervised release. While serving
his term of supervised release, he twice tested positive for marijuana use, failed to submit a report
to his probation officer, and absconded from supervision. In 2014, the district court revoked
Sims’s supervised release and imposed a 10-month sentence of imprisonment for his violations.
Then, in 2016, Sims sold a firearm and ammunition to a CI and was subsequently indicted
for unlawful possession of a firearm and ammunition by a felon, in violation of 18 U.S.C.
§ 922(g)(1). He later pleaded guilty to the charge without a plea agreement.
At his sentencing hearing, the district court applied a base offense level of 14, and gave a
2-level reduction for acceptance of responsibility for a total offense level of 12. Based on Sims’s
criminal history category of V, the resulting Sentencing Guidelines range was 27-33 months.
Defense counsel, arguing for a below or low-end Guideline sentence, noted Sims’s
“difficult childhood.” Defense counsel also noted that in the two-year period between his offense
and arrest, Sims had married and was helping raise his wife’s grandchild, was actively involved
with his own children, and had lived in the community without incident. The defense submitted
eleven letters of support substantiating the changes he had made. Sims’s landlord, also his
employer, submitted a letter indicating Sims was “a very hard worker” with “excellent attendance”
and “very impressive work skills,” and that he intended to re-hire Sims when he was released.
Defense counsel pointed out that Sims had “maintained employment” and had taken a substance
abuse class to address his prior marijuana use. While acknowledging the court’s concern over
Sims’s criminal record, defense counsel also noted that Sims had committed only traffic offenses
since the time of the instant offense, had readily admitted his conduct when confronted by law
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enforcement prior to his indictment, and contended that his prior convictions included minor
misdemeanors for marijuana possession and disorderly conduct.
The district court emphasized Sims’s prior 34-month sentence for his first felon-in-
possession conviction, and his further 10-month sentence for violating his supervised release in
that case. The court explained that it was considering varying above the Guidelines range because
Sims was “not a defendant who [didn’t] know that [he was] facing a federal prosecution for
possessing a gun and ammunition” but rather he went “out and [did] it again,” despite knowing
“what the consequences would be here in federal court.” Accordingly, since his prior term of
imprisonment had failed to “send [Sims] a message,” the court found it necessary to “remove him
from society so that he understands he cannot go out and get guns and then put them in the hands
of other people, many times people that can’t have them.” The court noted that Sims’s positive
interactions in the community in the two-year gap between his offense and arrest were factors that
would “count as I decide how much the upward variance will be because I don’t think the
guidelines are sufficient for individuals who spent 34 months on one gun case and another ten on
a violation.” It further noted that Sims’s juvenile record included “another firearm offense . . .
which is serious, as well.”
For his part, Sims admitted that his decision to cease his marijuana use occurred during his
incarceration, and that he had been using marijuana when he was arrested in March 2018. Sims
stated that he took “full responsibility for my offense conduct.”
In discussing the applicable § 3553(a) factors, the court stated that it had “carefully
considered the matter,” including “review[ing] the sentencing memorandum submitted by the
defendant, the letters that were submitted in support and the certificates” in deciding “an
appropriate sentence in the matter.” It noted Sims’s continued contact with his three minor
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children, and that he planned to live “with his wife and two grandchildren . . . upon his release
from custody in this case.” As to the offense conduct, the court noted that Sims “did not just sell
the gun, but he also sold the ammunition to . . . make certain the firearm could be utilized.” It
noted Sims’s juvenile record and “14 adult convictions ranging from no operator’s license to
burglary.” The court acknowledged Sims’s difficult upbringing and prior substance abuse,
including “test[ing] positive for drugs at the time of his appearance through pretrial services” and
Sims’s belief that “he could benefit from substance abuse counseling.”
The court also acknowledged that although an upward variance might result in “some
disparity between defendants with similar records and similar past[s],” it believed that a Guidelines
sentence would be “insufficient . . . because of the defendant’s prior record and history.” The court
explained that Sims had “been involved with the law since the age of 16” and despite being
incarcerated and placed on probation previously, none of his past “sanctions ha[d] deterred him
from being involved with guns,” including his “prior felon in possession conviction in our district”
that resulted in a 34-month sentence, violation of his supervised release, and additional 10-month
sentence. Despite these prior convictions, the court noted that Sims “continue[d] to possess
firearms knowing he’s unable to do so,” thus posing “a risk to the community by possessing and
selling firearms.” It concluded that since Sims’s prior 34- and 10-month sentences were
insufficient “to get the defendant’s attention, to understand he can’t have a gun, then the 27- to 33-
month range isn’t sufficient.” The court indicated that it had planned to vary upward to a 60-
month sentence, representing half the applicable statutory maximum penalty, but had instead
decided to apply a less substantial upward variance, and imposed a 48-month sentence, based on
the defense’s mitigating arguments.
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Defense counsel objected to the upward variance as unwarranted, arguing that the court
had placed too much weight on the defendant’s record, as opposed to the sentencing factors raised
by the defense. The court again explained its sentence, and emphasized its prior intention to
impose a 60-month sentence, before the defense’s mitigating arguments, “reread[ing] your
briefing,” and considering that Sims had “readily admitted his conduct.” Sims now appeals the
substantive reasonableness of his above-Guidelines sentence.
II.
We review a district court’s sentencing decision “under a deferential abuse-of-discretion
standard” and “take into account the totality of the circumstances” in determining a sentence’s
substantive reasonableness. Gall v. United States, 552 U.S. 38, 41, 51 (2007).1 “An abuse of
discretion is established where the reviewing court is left with a definite and firm conviction that
the district court committed a clear error of judgment.” Coach, Inc. v. Goodfellow, 717 F.3d 498,
505 (6th Cir. 2013).
“A sentence will be found to be substantively unreasonable when the district court selects
the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent
§ 3553(a) factors[,] or gives an unreasonable amount of weight to any pertinent factor.” United
States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008) (internal quotation marks and citation omitted).
“The essence of a substantive-reasonableness claim is whether the length of the sentence is greater
than necessary to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United States v.
Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010) (internal quotation marks omitted). On
review, we “may consider the extent of the deviation, but must give due deference to the district
1
Given that Sims does not challenge the procedural reasonableness of his sentence, we
need only review for substantive reasonableness. United States v. Walls, 546 F.3d 728, 736 (6th
Cir. 2008).
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court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact
that the appellate court might reasonably have concluded that a different sentence was appropriate
is insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51; see United States v.
Vasquez, 560 F.3d 461, 473 (6th Cir. 2009) (noting that the court “give[s] due deference to the
district court’s application of the guideline to the facts.” (internal quotation marks and citation
omitted)).
Sims argues that at sentencing, the district court “did not explain how the facts and
circumstances of Sims’s offense and his personal and criminal history removed this case from the
‘heartland’ of felon-in-possession cases,” and “gave an unreasonable amount of weight to Sims’s
prior felon-in-possession conviction, and too little weight to the evidence showing that he poses
neither a danger to the community, nor a serious recidivism risk.” Sims further contends that
caselaw demonstrates that above-Guidelines sentences in felon-in-possession cases are reserved
for defendants whose offenses and/or criminal histories stand out for their violence and brazenness.
Sims’s argument ignores, however, that provided the district court has examined all the
§ 3553(a) factors, it may place greater weight on a particular factor if such weight is warranted
under the facts of the case. United States v. Adkins, 729 F.3d 559, 571 (6th Cir. 2013). Unlike our
recent decision in United States v. Warren—in which we reversed as substantively unreasonable
a sentence that “roughly doubl[ed]” the recommended sentence where the variance was based
solely on the defendant’s criminal record, which is already accounted for in a defendant’s criminal
history category, 771 F. App’x 637, 641-43 (6th Cir. 2019) (emphasis in original)—the district
court here provided several reasons supporting its decision to vary upward by roughly one-half,
even discussing the defense’s mitigating arguments that had persuaded the court not to impose a
greater variance. The court further explained its heightened concern given that Sims had not only
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possessed a firearm as a prior felon, but had in fact sold the gun and ammunition to another person,
making his new offense “worse.” The court thus adequately explained why the nature and
circumstances of Sims’s case fell outside the “heartland” of felon-in-possession cases, and noted
that the Guidelines do not account for an “individual[] who spent 34 months on one gun case and
another ten on a violation,” necessitating the upward variance, despite the potential disparity with
other sentences.
Because the district court considered all pertinent factors in this case, Sims faces a “much
greater burden in arguing that the court has given an unreasonable amount of weight to any
particular one.” United States v. Zobel, 696 F.3d 558, 571 (6th Cir. 2012) (internal quotation
marks and citation omitted). Sims has failed to meet his significant burden to instill in us “a
definite and firm conviction that the district court committed a clear error of judgment.”
Goodfellow, 717 F.3d at 505. His argument ultimately asks this court to reweigh the § 3553(a)
factors differently than did the district court, and is therefore “simply beyond the scope of our
appellate review, which looks to whether the sentence is reasonable, as opposed to whether in the
first instance we would have imposed the same sentence.” United States v. Ely, 468 F.3d 299, 404
(6th Cir. 2006).
AFFIRMED.
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JANE B. STRANCH, Circuit Judge, dissenting. Donald Sims pled guilty to one count of
unlawful possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1)
for selling a pistol and magazine to a confidential informant for $300. With a category V criminal
history taken into account, his Guidelines range was 27-33 months. The district court varied
upward 45% from the top of that range to a four-year sentence, having concluded that prior
sanctions failed “to send a message” and that Sims “has no regard for following the rules.” Sims
explained that he got the firearm for a friend who said he had been robbed and needed to be able
to defend himself. He also noted that he lived a law-abiding life, save a few vehicular infractions,
for the two years between the gun sale at issue and his arrest. In this same two-year period, he got
married, held a job, and became involved in the lives of his children. Sims’s life in the leadup to
his arrest (he was 37-years old at the time of sentencing) stands in stark contrast to the abuse and
mental health issues that he suffered during his childhood and adolescent life. Sims has had no
history of violence as an adult and plans to return to his wife and step-grandchildren upon release
from custody.
Knowing the facts is necessary, but merely the beginning in applying the law to determine
whether a sentence is substantively reasonable. For more than a decade, we and our sister circuits
have struggled to implement the Supreme Court’s instruction in Gall v. United States to “consider
the substantive reasonableness of the sentence imposed.” 552 U.S. 38, 51 (2007). We have
sometimes allowed a finding of procedural reasonableness to indicate satisfaction of substantive
reasonableness. But Gall requires a separate assessment of whether an otherwise procedurally
reasonable sentence is greater than necessary in light of the defendant’s unique circumstances and
sentences given to similarly-situated defendants. 552 U.S. at 49–51, 54–56. More recently, we
have begun to address that problem, recognizing the distinct jobs of procedural reasonableness and
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explaining that substantive reasonableness review also includes an assessment of whether “the
court placed too much weight on some of the § 3553(a) factors and too little on others.” United
States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019) (quoting United States v. Rayyan, 885 F.3d
436, 442 (6th Cir. 2018)).
That does not mean, of course, that a sentence is substantively unreasonable merely
because we would have balanced the § 3553(a) factors differently. Nor does it mean that if the
district court considered and weighed all pertinent factors, it did not give an unreasonable amount
of weight to any particular one. Though appealing at first glance, this premise is problematic
because it comes dangerously close to saying that a procedurally reasonable sentence (one that
“consider[s] the § 3553(a) factors,” Gall, 552 U.S. at 51) is presumed to be substantively
reasonable (does not “place[] too much weight on some of the § 3553(a) factors and too little on
others,” Parrish, 915 F.3d at 1047 (citation omitted)). That presumption is found nowhere in Gall.
If the court inappropriately weighs the § 3553(a) factors, “the sentence is substantively
unreasonable regardless of whether the court checked every procedural box before imposing
sentence.” United States v. Boucher, 937 F.3d 702, 707 (6th Cir. 2019) (quoting Parrish, 915 F.3d
at 1047). Comparably, despite procedural propriety, a sentence would be substantively
unreasonable if it results from a district court’s failure to adequately consider a defendant’s life
history and unique characteristics, the kinds of sentences available, and the “need to avoid
unwarranted sentence disparities.” § 3553(a).
One way to determine whether the length of the sentence was “greater than necessary”
(§ 3553(a)) to achieve the goals of sentencing is found in Kimbrough, decided the same day as
Gall. Kimbrough v. United States, 552 U.S. 85, 109 (2007). Because the Sentencing Commission
exercised its expertise in selecting the sentencing range for the crimes covered by a particular
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guideline, we have explained that “a sentence that departs from the advisory range in a ‘mine-run
case’ warrants ‘closer review.’” United States v. Herrera-Zuniga, 571 F.3d 568, 582 (6th Cir.
2009) (quoting Kimbrough, 552 U.S. at 109). To be clear, “closer review” cannot mean de novo.
The Guidelines are not mandatory, and we review both within- and outside-Guidelines sentences
for abuse of discretion. See Gall, 552 U.S. at 51. But if the sentencing court deems a sentence
outside the Guidelines appropriate in an otherwise unexceptional case, we look closer to “ensure
that the justification is sufficiently compelling to support the degree of the variance.” Id. at 50.
As applicable to any substantive reasonableness review, potential justifications could include, for
example, a policy-based disagreement with the Guidelines, see Kimbrough, 552 U.S. at 110–11,
the Government’s concession that a below-Guidelines sentence is in order, a Rule 11(c)(1)(C) plea
agreement specifying a sentence, etc. Whatever the justification may be, the sentencing court must
clearly articulate it, and we must agree, on “closer review,” that it is compelling.
Applying that framework to this case, I would first ask whether this variance was imposed
in a mine-run case. See Herrera-Zuniga, 571 F.3d at 582. A mine-run case is not a theoretical,
minimally culpable offense. It is a normal offense under that guideline, with those sentencing
enhancements and that criminal history category. Thus, in Rita v. United States, the Supreme
Court summarized the crimes at issue, the offense level, and the criminal history category before
asking whether the defendant’s “circumstances are special.” 551 U.S. 338, 359–60 (2007).
The primary concern of the district court was that Sims committed the same crime twice.
But of course, recidivism is at the heart of his offense. Sims faced criminal penalties for firearm
possession precisely because he had previously been convicted of “a crime punishable by
imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). And though the district
court was concerned that Sims had already “served custody time,” it is impossible to be placed in
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category V without serving custodial sentences. See USSG § 4A1.1. The mere existence of prior
convictions thus does not remove Sims’s case from the heartland. See United States v. Warren,
771 F. App’x 637, 642 (6th Cir. 2019) (“[B]ecause the Guidelines already account for a
defendant’s criminal history, imposing an extreme variance based on that same criminal history is
inconsistent with ‘the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct’ under 18 U.S.C. § 3553(a)(6).”);
United States v. Kirchhof, 505 F.3d 409, 415 (6th Cir. 2007) (reversing a variance in part because
the defendant’s “lack of prior criminal history was already taken into account in calculating his
guidelines range”).
At issue is whether Sims’s recidivism was somehow unusual or unaccounted for in the
Guidelines. See, e.g., United States v. Williams, 664 F. App’x 517, 519 (6th Cir. 2016) (noting
that the crimes were increasing in severity); Herrera-Zuniga, 571 F.3d at 589 (finding the assessed
tier underrepresented the severity of past crimes). More specifically, given the district court’s
stated concerns, is it unusual for a defendant in category V not only to recidivate, but to commit
the same firearm offense twice? The court failed to consider this question. We should. The answer
is no. Among federal offenders, those convicted of firearms offenses are the most likely to
recidivate, with 68.3% being rearrested within eight years of release.1 And among state prisoners,
not only do 83.4% reoffend within nine years of release, but 58.2% commit the same type of
1
See U.S. Sentencing Comm’n, Recidivism Among Federal Offenders: A
Comprehensive Overview 20 (Mar. 2016), https://www.ussc.gov/sites/default/files/pdf/research-
and-publications/research-publications/2016/recidivism_overview.pdf.
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offense again.2 These statistics represent the mine-run case. A characteristic shared by 60% to
70% of offenders cannot remove Sims’s case from the heartland.
Second, Sims tested positive for marijuana while on probation. The legal landscape
regarding marijuana has changed.3 Indeed, under federal law, a single positive drug test does not
even justify revoking supervised release. 18 U.S.C. § 3583(g)(4). And although the sentencing
transcript reveals that the district court was troubled by Sims’s continued marijuana usage, it did
not consider whether positive marijuana tests are uncommon among mine-run defendants.
Finally, Sims sold a gun and magazine. The ammunition argument is a red herring.
A cursory review of our caselaw demonstrates that guns involved in firearms charges are very
frequently loaded—or worse, fired.4 As for the sale itself, the district court considered only its
troubling aspects, declaring (incorrectly) that Sims’s reason was “immaterial.” But “a defendant’s
motive is a relevant—and often important—factor under the Guidelines.” Boucher, 937 F.3d at
709; see also United States v. Borden, 365 F. App’x 617, 622 (6th Cir. 2010); United States v.
Blackwell, 459 F.3d 739, 774 (6th Cir. 2006). We should consider the specific circumstances and
ask whether selling a pistol to a friend who seeks protection because he was “robbed at his house,”
2
See Mariel Alper et al., U.S. Dep’t of Justice Statistics, 2018 Update on Prisoner
Recidivism: A 9-Year Follow-up Period (2005-2014) at 11 (May 2018),
https://www.bjs.gov/content/pub/pdf/18upr9yfup0514.pdf.
3
John G. Sprankling, Owning Marijuana, 14 Duke J. Const. L. & Pub. Pol’y 1, 16 (2019).
See Ohio Rev. Code §§ 3796.01 et seq. (legalizing marijuana for medical purposes); 2019 Ohio
S.B. 57 (legalizing hemp). See Cincinnati, Ohio Code of Ordinances § 910-23 (providing for a
zero-dollar fine for possession of less than 100 grams of marijuana, and explaining that a
conviction for violation of the section “does not constitute a criminal record”).
4
See, e.g., United States v. Shanklin, 924 F.3d 905, 911 (6th Cir. 2019) (loaded); United
States v. Massey, 758 F. App’x 455, 457 (6th Cir. 2018) (per curiam) (loaded plus extra
ammunition); United States v. Stafford, 721 F.3d 380, 387–88 (6th Cir. 2013) (fired); United States
v. Angel, 576 F.3d 318, 319–20 (6th Cir. 2009) (loaded plus extra ammunition); United States v.
Maxon, 250 F. App’x 129, 130 (6th Cir. 2007) (fired); United States v. Cheney, 183 F. App’x 516,
517 (6th Cir. 2006) (loaded).
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is worse than mine-run firearm possession—a category that routinely includes possessing a gun to
protect a drug stash.5
Asking the correct questions reveals that this case is in the heartland. Applying “closer
review” to this sentence, Kimbrough, 552 U.S. at 109, requires us to ask what “compelling” reason
the district court gave to vary, Gall, 552 U.S. at 50.
The district court apparently thought that a compelling justification was unnecessary
because a one-year upward variance from the top of the Guidelines range was “not substantial in
[the court’s] view.” The court deemed this variance small by reference to its own original intention
“to vary upward to the mid range of the statutory penalty of 60 months.” But the statutory range
is not the starting point for the sentencing court’s analysis. See United States v. Poynter, 495 F.3d
349, 355 (6th Cir. 2007) (explaining that though the statutory maximum may eliminate a risk of
disparity created by sentences above the maximum, “that maximum does little to diminish
disparities for individuals who receive (or should receive) sentences below [the maximum]”). The
beginning point should be the Guidelines, which are designed to diminish sentencing disparities
among similar defendants. Id.
The inquiry is not complete until we consider the special circumstances and potential
justifications that are applicable under § 3553(a), particularly those argued by the defense. First,
the Government let Sims remain in the community for more than two years after the gun sale took
place in January 2016. During that period, Sims’s only offenses were vehicular infractions. The
district court refused to consider that recent history on the basis that Sims “knew that this was, this
case might be coming down the road, so what effect that had on his behavior, I do not know.” This
5
See, e.g., Shanklin, 924 F.3d at 910–11; Massey, 758 F. App’x at 457; Angel, 576 F.3d at
320; Cheney, 183 F. App’x at 517.
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is unwarranted speculation; there is no evidence in the record that Sims knew about his pending
arraignment until he was approached by detectives in December 2017, two years after the sale.
The court therefore should have assigned at least some weight to the Government’s apparently
justified belief that there was minimal need “to protect the public from further crimes of the
defendant.” 18 U.S.C. § 3553(a)(2)(C). See Pepper v. United States, 562 U.S. 476, 491 (2011)
(explaining that evidence of rehabilitation “may plainly be relevant to” several § 3553 factors,
including deterrence).
Similarly, Sims had “demonstrate[d] an honest effort to turn his life around.” Boucher,
937 F.3d at 711. In the years preceding his arrest, Sims (apparently for the first time in his life)
got married, held down a steady job, and became active in the lives of his children and step-
children. His son’s preschool teacher described Sims’s frequent attendance at school programs to
“help[] out with the students,” and the adopted father of another student explained that Sims’s son
was “thriving because of his father being active in his life.” Sims’s employer verified that his
attendance and work product were “outstanding.” Those achievements are made more significant
by contrast to Sims’s younger years. His parents struggled with substance abuse and physically
and emotionally abused him to the point that he was twice placed in foster care. At age 15, Sims
attempted suicide; he then dropped out of high school and began committing crimes. The district
court failed to recognize the effort and the challenge of building a largely law-abiding life on those
shaky foundations. Instead, it noted dismissively that it reviewed “the letters that were submitted
in support and the certificates and what have you,” and rattled off childhood abuse in a list of
Sims’s characteristics that included his “good physical health,” his positive drug test at
arraignment, and his plans to live with his wife upon release. Merely mentioning “the history and
characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), may satisfy procedural reasonableness,
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but substantive reasonableness requires at least some weighing of those characteristics. Cf. Gall,
552 U.S. at 59 (“The District Court quite reasonably attached great weight to Gall’s self-motivated
rehabilitation . . . .”).
* * *
Evidence from all the stakeholders—The Sentencing Commission, trial and appellate
judges, scholars, legal and correctional experts, and the incarcerated—reveals how hard it can be
to understand and apply substantive reasonableness in sentencing. Those difficulties, however,
provide no license to discount substantive reasonableness, equate it to procedural reasonableness,
or substitute statutory maximums for real review. Those who must impose, review, or live with a
sentence need a clearer grasp of the tenets of substantive reasonableness.
In Kimbrough, the Supreme Court set out an initial pathway, explaining one important
purpose of substantive reasonableness review. Such review guards against unwanted
discrepancies among sentences for comparable crimes and helps courts police systemic and
historical problems with sentencing.6 Gall teaches that appellate courts are to separately assess
whether a procedurally reasonable sentence could create sentencing disparities. 552 U.S. at 49–
51, 54–56. “[A] district judge who gives harsh sentences to Yankees fans and lenient sentences to
Red Sox fans would not be acting reasonably even if her procedural rulings were impeccable.”
Rita, 551 U.S. at 365 (Stevens, J., concurring).
Substantive reasonableness review serves as a check and balance on the American
sentencing system. Though the sentencing court’s ring-side view puts it “in a superior position to
6
See Sonja B. Starr & M. Marit Rehavi, Mandatory Sentencing and Racial Disparity:
Assessing the Role of Prosecutors and the Effects of Booker, 123 Yale L.J. 2, 78 (2013) (“After
controlling for the arrest offense, criminal history, and other prior characteristics, sentences for
black male arrestees diverge substantially from those of white male arrestees . . . .”).
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find facts and judge their import under § 3553(a) in the individual case,” Gall, 552 U.S. at 51, our
bird’s-eye view means we “are far better positioned to assess whether a sentence qualifies as an
outlier than a district court judge who would have to make an active effort to understand how his
sentencing practices rate with those of his colleagues.” Note, More Than A Formality: The Case
for Meaningful Substantive Reasonableness Review, 127 Harv. L. Rev. 951, 967 (2014).
It is undoubtably a challenge to distinguish a harsh-but-reasonable sentence from an
unreasonably harsh sentence. But that provides no basis for failing to perform substantive
reasonableness review to determine whether the sentence imposed is “sufficient, but not greater
than necessary.” §3553(a). There are guideposts available for assessing substantive
reasonableness as a distinct inquiry. We should employ them more thoroughly.
I agree that Sims broke the law. His unreasonably harsh sentence, however, fails the
substantive reasonableness test. I therefore respectfully dissent.
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