United States v. David Zobel , 696 F.3d 558 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0358p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 11-3341
v.
,
>
-
Defendant-Appellant. -
DAVID JEREMY ZOBEL,
N
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 3:09-cr-128-1—Walter H. Rice, District Judge.
Argued: April 19, 2012
Decided and Filed: October 11, 2012
Before: MOORE, GIBBONS, and ALARCÓN, Circuit Judges.*
_________________
COUNSEL
ARGUED: Sandra J. Finucane, Gahanna, Ohio, for Appellant. Brent G. Tabacchi,
UNITED STATES ATTORNEY’S OFFICE, Dayton, Ohio, for Appellee. ON BRIEF:
Sandra J. Finucane, Gahanna, Ohio, for Appellant. Brent G. Tabacchi, UNITED
STATES ATTORNEY’S OFFICE, Dayton, Ohio, for Appellee.
GIBBONS, J., delivered the opinion of the court, in which ALARCÓN, J.,
joined. MOORE, J. (pp. 24–26), delivered a separate dissenting opinion.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Defendant–appellant David Zobel
appeals his sentence for knowingly coercing and enticing a minor to engage in sexual
*
The Honorable Arthur L. Alarcón, Senior Circuit Judge for the United States Court of Appeals
for the Ninth Circuit, sitting by designation.
1
No. 11-3341 United States v. Zobel Page 2
activity, in violation of 18 U.S.C. § 2422(b). After Zobel pled guilty, the district court
imposed a sentence of 150 months of imprisonment, which represented a 15 month
upward variance from the upper-end of the Guidelines range. The district court also
imposed several special conditions of supervised release for life, which prohibit Zobel,
inter alia, from having contact with minors absent prior judicial approval, loitering in
areas where children tend to congregate, and possessing or viewing pornography or
materials that are “sexually explicit or suggestive.” Zobel argues that his
sentence—both the term of incarceration and several special conditions—was both
procedurally and substantively unreasonable.
For the reasons that follow, we vacate the part of the special condition that bans
possessing or accessing “sexually suggestive” materials, affirm the remainder of the
sentence, and remand for resentencing proceedings consistent with this opinion.
I.
Beginning in approximately December 2008, Zobel engaged in a series of
sexually explicit online chats with numerous minor females from around the country.
Zobel resided in Ann Arbor, Michigan, and one of those minor females, J.C., resided in
Xenia, Ohio. In January 2009, Zobel used online chatting and text messaging to
persuade J.C. to perform oral sex on him. Zobel either knew that J.C. was under sixteen
years of age or recklessly disregarded her age. J.C. was thirteen years old.
Early in the morning on June 2, 2009, Zobel exchanged a series of text messages
with J.C. in which J.C. informed Zobel that she and a friend of hers, B.B., had run away
from home. J.C. informed Zobel that B.B. was fourteen years old and “cute.” In fact,
B.B. was only twelve years old. Zobel responded: “Maybe I should drive down and get
you 2 a hotel room . . . .” J.C. replied: “[I]f you come down here [B.B.] will do whatever
you want.” The two fixed a place to meet in Xenia. Zobel then asked: “And u guys will
do ANYTHING I want?”
Zobel then drove from Ann Arbor to Xenia to pick up the girls. Zobel drove
them to a parking garage in Toledo, Ohio, where he had both J.C. and B.B. perform oral
No. 11-3341 United States v. Zobel Page 3
sex on him. He also took pictures of the girls posing in their bras and with their bare
breasts exposed. Zobel then gave each of the girls twenty dollars and left them in the
parking garage.
Shortly afterwards, Toledo police found J.C. and B.B., who stated that a man
named David had picked them up in Xenia and driven them to Toledo, where he had
them perform oral sex on him. Police located Zobel and obtained a search warrant for
his apartment. Agents discovered that around the time that Zobel was engaging in these
sexual activities with minors, he was downloading child pornography onto his home
computer from the Internet. He had downloaded at least sixty-one images of child
pornography onto his computer.
Zobel was charged in a five-count indictment. Count one charged Zobel with
knowingly persuading and enticing J.C., a minor, to engage in sexual activity, in
violation of 18 U.S.C. § 2422(b). Count two charged a violation of the same statute for
enticing B.B. to engage in sexual activity. Counts three through five charged Zobel with
interstate travel with intent to engage in illicit sexual conduct with a minor, in violation
of 18 U.S.C. § 2423(b). Pursuant to the plea agreement, Zobel pled guilty to count one
of the indictment and the government agreed to move to dismiss counts two through five.
In his plea agreement, Zobel agreed that a sentence of imprisonment between 120 and
180 months and supervised release up to life would be appropriate. The government
agreed to recommend that Zobel be sentenced within the Guidelines range, so long as
the court did not calculate a total adjusted offense level of less than 31. The district
court accepted Zobel’s guilty plea.
The Pre-sentence Investigation Report (PSR) set an adjusted offense level of 31,
with a Criminal History category of I. Given the statutory minimum sentence for
Zobel’s crime, this offense level yielded a Guidelines range of 120–135 months of
imprisonment. The parties did not object to this calculation.
Prior to sentencing, the district court conducted a hearing at which Dr. David
Roush, who had performed a psychological evaluation of Zobel for approximately six
hours over two days, testified. Among other diagnostics, Roush had administered the
No. 11-3341 United States v. Zobel Page 4
Static-99 test, which assists in predicting sexual and violent recidivism for sexual
offenders by measuring ten risk factors. Roush added to his assessment two risk factors
not present in the Static-99—Zobel’s self-admitted addiction to pornography and his use
of child pornography. Without these two additional risk factors, Zobel would have
presented a low to moderate risk of recidivism, but with these factors, he presented a
moderate to high risk of recidivism. Roush justified his addition of these two risk factors
based on his twenty years of experience working with sexual offenders. Roush stated
that although empirical data supported his decision to add these two risk factors, he
could not cite and did not include in his report any supportive studies or research.
Finally, Roush added that he was particularly concerned that Zobel, after J.C. initially
told him she was sixteen years old, had researched the age of consent in Ohio and then,
after he discovered that J.C. was actually underage, still engaged in sexual behavior with
her and B.B.
The district court conducted a sentencing hearing two months later. At the
sentencing hearing, the district court began by observing that Zobel’s case was
“somewhat different” in part because Zobel had “acted out against young children”
while also accessing child pornography. It noted that Zobel, while not forcing himself
upon the minors, had “carefully cultivated [and] . . . manipulated them.” The court
adopted the calculations of the PSR, agreeing that Zobel’s Guidelines range was
120–135 months.
After correctly calculating the applicable Guidelines range, the district court
examined a number of the 18 U.S.C. § 3553(a) factors. It recognized Zobel’s need for
treatment while incarcerated and considered whether Zobel’s sentence would be
disproportionate to those of similarly situated defendants on a national level. The court
then focused on Zobel’s history and characteristics and the nature and circumstances of
the offense. In examining these factors, the court noted Zobel’s family background, as
well as his self-admitted addiction to pornography and his use of child pornography. It
also observed that the crime was “horrible” in part because the minors “had issues and
problems of their own”—and Zobel “t[ook] advantage of the[se] vulnerabilities.”
No. 11-3341 United States v. Zobel Page 5
The court then focused on “the safety of the community because in reality that’s
what it comes down to.” In so doing, the court found that “Dr. Roush’s addition of two
factors to the Static-99 is not contraindicated from the standpoint of a forensic
psychologist.” Although the court remarked that it would have liked to have reviewed
the authority upon which Roush relied to justify adding Zobel’s addiction to
pornography and use of child pornography as risk factors, the court did note that Roush
testified “within a reasonable psychological certainty that . . . it is psychologically proper
. . . to add [such] risk factors . . . .” As a result, the court concluded that “the bottom line
is that [Zobel] does represent a moderate risk to the community.” The court further
observed that Zobel specifically researched the age of consent in Ohio and, after finding
out J.C.’s true age, “still continued to engage in inappropriate sexual behavior” with both
her and her friend B.B. It noted that Zobel had driven over three hours from Ann Arbor
to Xenia, giving him ample time to reconsider what he had planned to do, but he instead
went forward and “used these women for whatever purposes he had in mind [and] simply
discarded them and went on his way.”
Drawing upon all of these observations, the district court sentenced Zobel to
150 months in prison—a 15 month upward variance above the upper-end of the
Guidelines range. The court also imposed a number of special conditions. Zobel now
challenges both his sentence of incarceration and these special conditions as
procedurally and substantively unreasonable.
II.
Zobel argues that his 150-month, above-Guidelines sentence was procedurally
unreasonable because the district court failed to adequately “explain why any of its cited
reasons individually or in combination justified an upward variance.” As a general
matter, we review the reasonableness of a sentence under the deferential abuse-of-
discretion standard. United States v. Battaglia, 624 F.3d 348, 350 (6th Cir. 2010). But
here, the district court, after rendering the sentence, asked Zobel’s counsel if he had any
further objections, and Zobel’s counsel answered, “no.” As a result, we review the
procedural reasonableness of Zobel’s sentence for plain error. United States v. Phillips,
No. 11-3341 United States v. Zobel Page 6
516 F.3d 479, 487 (6th Cir. 2008). For an error to be plain, Zobel “must show (1) error
(2) that was obvious or clear (3) that affected defendant’s substantial rights and (4) that
affected the fairness, integrity, or public reputation of the judicial proceedings.” Id.(internal quotation marks omitted).
For a sentence to be procedurally reasonable, “a district court must explain its
reasoning to a sufficient degree to allow for meaningful appellate review.” United States
v. Brogdon, 503 F.3d 555, 559 (6th Cir. 2007) (internal quotation and editorial marks
omitted). A district court commits reversible procedural error by “failing to calculate
(or improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence—including an explanation for
any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007).
Further, if the sentence imposed is outside the advisory range, the court is required to
state “the specific reason for the imposition of” its departure or variance. 18 U.S.C.
§ 3553(c)(2); United States v. Johnson, 640 F.3d 195, 205 (6th Cir. 2011).
As a preliminary matter, we acknowledge that the district court’s written
statement of reasons was sparse. On the statement of reasons form, the judge merely
checked off a box indicating that he imposed an above-Guidelines sentence due to “the
nature and circumstances of the offense and the history and characteristics of the
defendant . . . .” Standing alone, this statement of reasons would lack “the requisite level
of specificity” and result in remand. See United States v. Blackie, 548 F.3d 395, 401–03
(6th Cir. 2008). But although we have emphasized that a district court should reduce its
reasoning to writing to comply with 18 U.S.C. § 3553(c)(2), we have “‘not vacated a
sentence solely for failure to meet the statute’s written order requirement . . . .’” United
States v. Williams, 396 F. App’x 212, 220 (6th Cir. 2010) (quoting United States v.
Poynter, 344 F. App’x 171, 181 n.8 (6th Cir. 2009)); see United States v. Malone,
404 F. App’x 964, 971 (6th Cir. 2010) (Moore, J., dissenting) (“[A] failure to comply
with the written-statement requirement will not result in reversible error so long as the
district court provides an oral explanation for an above-guidelines sentence.”). Here, the
No. 11-3341 United States v. Zobel Page 7
district court’s oral explanation at the sentencing hearing was sufficient to compensate
for its scant written explanation.
At the sentencing hearing, after correctly calculating the applicable Guidelines
range, the district court examined a number of the § 3553(a) factors. It recognized
Zobel’s need for treatment while incarcerated and considered whether Zobel’s sentence
would present a disparity when compared nationally to the sentences of similarly
situated defendants. 18 U.S.C. §§ 3553(a)(2)(D), (a)(6). The court then focused on
Zobel’s “history and characteristics” and “the nature and circumstances of the offense.”
See id. § 3553(a)(1). Regarding Zobel’s history and characteristics, the court noted
Zobel’s supportive family background and musical talent, as well as his self-admitted
addiction to pornography and his use of child pornography. Regarding the nature and
circumstances of the offense, the court noted that Zobel pursued this “horrible” course
of conduct after researching the age of consent in Ohio and knowing the victims were
underage, that Zobel had ample time to reconsider going through with his actions, and
that Zobel “cultivated” and “manipulated” minors who were particularly vulnerable.
Perhaps most pointedly, relying upon Roush’s expert testimony, the court observed that
“in reality . . . what it comes down to” is “the safety of the community” and later
concluded that “the bottom line is that [Zobel] does represent a moderate risk to the
community.” See id. § 3553(a)(2)(C). In providing these reasons—and in particular
emphasizing Zobel’s risk of recidivism and threat to the community—the district court
explained its above-Guidelines sentence with a sufficient degree of specificity to survive
a procedural reasonableness challenge on plain error review. See United States v. Klups,
514 F.3d 532, 537 (6th Cir. 2008) (finding above-Guidelines sentence procedurally
reasonable where district court “discuss[ed] the seriousness of the offense, the interest
in protecting the public from future sex crimes by Klups, and the requirement of a
sentence sufficient to allow for sex-offender treatment”—even though the district’s court
explanation for the basis of the variance contained “[s]ome ambiguity”); United States
v. Bolds, 511 F.3d 568, 582 (6th Cir. 2007) (finding above-Guidelines sentence
procedurally reasonable where district court noted “Bolds’ ‘consistently contumacious’
conduct in failing to abide by the terms of her supervised release and the ‘seriousness’
No. 11-3341 United States v. Zobel Page 8
of the[] supervised release violations,” the need to deter such conduct and protect the
public, and “the need to provide Bolds and her child with necessary medical care”); see
also United States v. Mays, 435 F. App’x 519, 520 (6th Cir. 2011) (per curiam) (finding
above-Guidelines sentence procedurally reasonable where district “court gave proper
consideration to the relevant § 3553(a) factors, explaining that an upward variance was
warranted by ‘the seriousness of the offense,’ the nature of the criminal behavior . . . and
the . . . ‘threat of recidivism’”); United States v. Harris, 339 F. App’x 533, 536 (6th Cir.
2009) (finding below-Guidelines sentence procedurally reasonable but vacating on other
grounds where district court’s explanation, though “far from ideal[,] . . . did offer an
explanation for the variance framed in terms of the § 3553(a) factors”); United States v.
Clowers, 280 F. App’x 496, 501 (6th Cir. 2008) (finding above-Guidelines sentence
procedurally reasonable where district court “demonstrated its detailed consideration of
several of the § 3553(a) factors”).
It would have been preferable for the district court to have directly stated on the
record that it was imposing a variance. But at the sentencing hearing, the court set forth
the applicable Guidelines range of 120–135 months—on which all parties agreed—and
shortly thereafter imposed a sentence of 150 months. Under these circumstances, it was
apparent to those present that Zobel was being sentenced to 15 months above the upper-
end of the Guidelines, and we therefore find no reversible procedural error on these
grounds. Cf. United States v. Denny, 653 F.3d 415, 421 (6th Cir. 2011) (finding that
sentence was procedurally reasonable even though district court repeatedly used the
word “departure” instead of the word “variance” because the court’s “clarifying
language during oral arguments and its clear reference to § 3553(a) factors” established
that the district court was indeed imposing a variance); United States v. Branch, 405 F.
App’x 967, 968–69 (6th Cir. 2010) (finding that sentence was procedurally reasonable
despite the fact that district court did not explicitly refer to the applicable Guidelines
range during sentencing because the parties agreed on the range and district court was
aware of it). Moreover, the district court checked the “outside the advisory sentencing
guideline system” box on its Statement of Reasons form.
No. 11-3341 United States v. Zobel Page 9
Although the district court did not separately state how each of its observations
about Zobel’s characteristics and crime—e.g., Zobel’s child pornography possession, the
fact that he “cultivated” and “manipulated” two young victims, and most importantly the
fact that he presented a public safety threat—supported the variance, we find no error
because all of these factors supported the variance. As we have previously held, albeit
in an unpublished case:
What [defendant’s] complaint comes down to, then, is whether the
district court adequately explained why 12 months, rather than 10
months, was appropriate. Yet everything the court said in explaining the
sentence . . . justified a 12–month sentence and sufficed to explain why
two months above the guidelines was appropriate. Under these
circumstances, the failure of the court to add an explicit coda—to the
effect that all of this justified a variance of two months—does not
amount to reversible error.
Malone, 404 F. App’x at 969. Similar to the trial court in Malone, here the district court
laid out a number of reasons that together were sufficient to justify the 150-month
sentence and the 15-month above-Guidelines variance, emphasizing in particular the
public safety factor. Even if the district court’s explanation can fairly be criticized for
lack of specificity, it differs markedly from those we have found so threadbare or
ambiguous so as to preclude meaningful appellate review. See, e.g., United States v.
Barahona-Montenegro, 565 F.3d 980, 984–85 (6th Cir. 2009) (finding district court’s
above-Guidelines sentence procedurally unreasonable where court “failed to explain its
chosen sentence” at sentencing and, when issuing a written statement of reasons two
months later, “aside from a single sentence, did not explain why the chosen sentence was
appropriate” (footnote omitted)); United States v. Johnson, 302 F. App’x 453, 457
(6th Cir. 2008) (finding district court’s above-Guidelines sentence procedurally
unreasonable where its explanation provided “nothing to review—no discussion of
§ 3553(a) nor any other explanation”); Blackie, 548 F.3d at 401–02 (finding district
court’s above-Guidelines sentence procedurally unreasonable where it “did not refer to
the applicable Guidelines range” nor provide any “specific reasons for an upward
departure or variance at the time of sentencing”). Here, the district court explained “its
reasoning to a sufficient degree to allow for meaningful appellate review”—the
No. 11-3341 United States v. Zobel Page 10
touchstone of procedural reasonableness. See Brogdon, 503 F.3d at 559 (internal
quotation marks omitted). If any error was committed, it was not plain.
III.
We now move to the substantive reasonableness of Zobel’s 150-month sentence.
“For a sentence to be substantively reasonable, it must be proportionate to the
seriousness of the circumstances of the offense and offender, and sufficient but not
greater than necessary, to comply with the purposes of § 3553(a).” United States v.
Vowell, 516 F.3d 503, 512 (6th Cir. 2008) (internal quotation marks omitted). “A
sentence is substantively unreasonable if the district court ‘selects a sentence arbitrarily,
bases the sentence on impermissible factors, fails to consider relevant sentencing factors,
or gives an unreasonable amount of weight to any pertinent factor.’” United States v.
Hall, 632 F.3d 331, 335 (6th Cir. 2011) (quoting United States v. Baker, 559 F.3d 443,
448 (6th Cir. 2009)). Although sentences within the Guidelines may be afforded a
presumption of substantive reasonableness, a sentence outside the Guidelines is not
presumed unreasonable. Bolds, 511 F.3d at 581. Further, when reviewing whether an
above-Guidelines sentence is reasonable, appellate courts may “take the degree of
variance into account and consider the extent of a deviation from the Guidelines.” Gall,
552 U.S. at 47. In reviewing a sentence, we give “‘due deference’ to the district court’s
conclusion that the sentence imposed is warranted by the § 3553(a) factors.” Bolds,
511 F.3d at 581. Thus, the mere fact that we “might have reasonably concluded that a
different sentence was appropriate is insufficient to justify reversal of the district court.”
Id. (internal quotation marks omitted). We review substantive reasonableness for abuse
of discretion. United States v. Richards, 659 F.3d 527, 549 (6th Cir. 2011).
As a preliminary matter, we note that Zobel received an upward variance of
roughly eleven percent over the 150-month upper limit suggested by the Guidelines.
Although the government did not seek an upward variance and the PSR recommended
a sentence of only 130 months, this variance is relatively minor when compared to others
that we have previously affirmed. See United States v. Stewart, 628 F.3d 246, 260–61
(6th Cir. 2010) (affirming 100 percent variance); Vowell, 516 F.3d at 511–13 (affirming
No. 11-3341 United States v. Zobel Page 11
242 percent variance). That Zobel’s variance is relatively minor matters because, “[i]n
general, ‘a major departure should be supported by a more significant justification than
a minor one.’” Bolds, 511 F.3d at 580 (quoting Gall, 552 U.S. at 50); see also United
States v. Stall, 581 F.3d 276, 281–82 (6th Cir. 2009).
Zobel argues that the district court erred by considering factors already accounted
for by the offense itself, improperly weighing certain factors, and taking into account
inappropriate factors. He first contends that the district court’s observation that he “took
advantage of the vulnerabilities” of the minors cannot justify a variance because
18 U.S.C. § 2422(b)—which prohibits a person from knowingly persuading a minor to
engage in sexual activity—inherently involves taking advantage of the vulnerabilities
of a minor. Zobel is correct that all minors are, by definition, vulnerable, but the district
court also explained that “these young ladies had issues and problems of their own,” and
that Zobel nonetheless chose to “cultivate” and “manipulate” them. Thus, while the
victims’ vulnerability is not a particularly strong justification to impose a variance here,
the district court did not err in considering it.
Zobel also argues that because he only persuaded the minors and did not engage
in actual solicitation, his crime was “not more egregious than the minimum level of
conduct necessary to secure a conviction.” In support, Zobel notes that J.C. herself
asked Zobel to help them leave Ohio. However, the point is not whether Zobel could
have more aggressively persuaded or solicited J.C.; it is—as the district court noted and
the plea agreement established—that Zobel cultivated and manipulated J.C. over a series
of months and maintained an inappropriate sexual relationship with her. These factors
do render Zobel’s crime somewhat unique and suggest that his behavior does not
embody merely the minimum level of conduct necessary to secure a conviction.
Moreover, Zobel’s argument that he did not engage in “undue persuasion” downplays
the part that he played in arranging the illicit rendezvous: it was Zobel who initially
suggested renting a hotel room for the girls, Zobel who offered to drive to Ohio and pick
them up, and Zobel who, months prior, encouraged J.C. to run away.
No. 11-3341 United States v. Zobel Page 12
Nor can the district court be faulted for failing to consider that civil detention,
if appropriate, would provide an additional check against Zobel’s recidivism upon
release. See 18 U.S.C. § 4248. The potential use of civil commitment is not an explicit
factor under § 3553(a) and Zobel did not raise this argument during sentencing. Further,
the Director of the Bureau of Prisons and the Attorney General always have the authority
to certify a sex offender as a “sexually dangerous person” and civilly commit him, a
determination subject to judicial review. See 18 U.S.C. §§ 4247(a)(5); 4248(a). If this
potential check on recidivism were enough to find Zobel’s upward variance
unreasonable, then nearly every upward variance would be unreasonable, because civil
commitment is always a potential option.
Finally, the district court did not place undue weight upon the safety of the
community in crafting Zobel’s sentence. Zobel contends that emphasizing the public
safety factor was problematic because the district court relied heavily upon Roush’s
flawed psychological assessment and testimony, which elevated Zobels’ recidivism risk
score by adding two risk factors—Zobel’s admitted addiction to pornography and use
of child pornography. He specifically objects to Roush’s testimony because, on cross-
examination, Roush stated that Zobel’s use of child pornography could only predict his
use of child pornography in the future, not necessarily his future propensity to commit
sexual offenses against minors. Nonetheless, the district court had reason to find Roush
credible and rely at least in part on his testimony in concluding that Zobel presented a
moderate public safety risk. Roush based his expert report on his examination of Zobel
and his twenty years of experience working with sexual offenders. Additionally, Zobel
did not introduce any expert testimony to rebut Roush’s conclusions. The mere fact that
Roush’s responses during cross-examination appeared to undercut somewhat his
decision to include Zobel’s addiction to pornography and use of child pornography as
recidivism risk factors for further hands-on sexual offenses does not mean the district
court abused its discretion in concluding that Roush testified “within a reasonable
psychological certainty that . . . it is psychologically proper from a forensic psychologist
perspective to add any other risk factors” to the Static-99 test. An expert witness’s
unrebutted testimony need not be flawless to be credible.
No. 11-3341 United States v. Zobel Page 13
In any event, we are not convinced that the district court relied too heavily on
Roush’s Static-99 assessment because the district court cited other factors that
contributed to its public safety analysis. For instance, the court noted that Zobel—after
researching the age of consent in Ohio and after learning that both of the victims were
minors—“still[] . . . made the choice to engage in that inappropriate behavior.” It noted
that this behavior was “very concerning.” In so observing, the district court echoed
Roush’s testimony that these particular actions constituted an additional risk factor.1
The district court also noted that Zobel had hours in which to reconsider his decision
during the drive from Michigan to Ohio, and that Zobel “used these women for whatever
purposes he had in mind [and] simply discarded them and went on his way.” These
factors, which are not elements of the offense itself, were appropriate to consider and
buttressed the district court’s determination that Zobel presented a public safety risk.
A sexual offender who knows the law and the age of his underage victims and has ample
time to reconsider, but who instead leaves his twelve and thirteen year old victims in a
parking garage in an unfamiliar city, certainly presents a risk to public safety—a risk that
the district court was entitled to find “moderate” and in support of the variance.2
The district court certainly attached significant weight to public safety concerns,
but “[a] district court does not commit reversible error simply by ‘attach[ing] great
weight’ to a single factor.” United States v. Thomas, 437 F. App’x 456, 458 (6th Cir.
2011) (quoting Gall, 552 U.S. at 57). Where—as here—“a district court explicitly or
implicitly considers and weighs all pertinent factors, a defendant clearly bears a much
1
On this point, Zobel argues that “[w]hile a truly honest, reasonable mistake [about the victim’s
age] might warrant a downward variance, an intentional disregard (or actual knowledge) of the age of the
victim, does not warrant an upward variance, or even a sentence at the high end of the guideline range.”
But even if this is true, Zobel took the time to research the age of consent and, before driving to Ohio in
June 2009, knew the actual age of the victims. That Zobel had actual (as opposed to presumed) knowledge
of both the law and the victims’ ages was a factor that the district court could find “very concerning” and
unique.
2
Zobel contends that the district court erred in considering Zobel’s own admission that he is
addicted to pornography. However, Zobel has failed to provide any support for this proposition, and
persuasive authority suggests that a district court may properly consider a defendant’s own admission of
his addiction to pornography when fashioning sentence terms. See United States v. Kosteniuk, 251 F.
App’x 97, 98–99 (3d Cir. 2007) (upholding supervised release where defendant himself admitted to an
“addiction” to pornography, “but the treatment failed to prevent his addiction from escalating”); United
States v. Dalimonte, 188 F. App’x 931, 933 (11th Cir. 2006) (noting that defendant’s “own admission that
he was addicted to viewing child pornography” demonstrated, in part, the need for supervised release).
No. 11-3341 United States v. Zobel Page 14
greater burden in arguing that the court has given an unreasonable amount of weight to
any particular one.” Id. (internal quotation marks omitted). Zobel has not met this
burden. The district court considered all relevant § 3553(a) factors, emphasized the risk
to public safety, and imposed an eleven percent variance based largely on its perception
of that risk. In so doing, the district court did not abuse its discretion.
IV.
We now consider whether the imposition of special conditions of supervised
release was procedurally unreasonable. Because Zobel was asked if he had any
objections to his sentence and he responded, “no,” we review the procedural
reasonableness of the special conditions of supervised release for plain error. See
Phillips, 516 F.3d at 487. A district court must “state in open court the reasons for its
imposition of the particular sentence, including its rationale for mandating special
conditions of supervised release.” United States v. Carter, 463 F.3d 526, 528–29
(6th Cir. 2006) (internal quotation marks omitted). Although a district court must
consider the factors specified in 18 U.S.C. § 3583(c) when imposing a condition of
supervised release, a district court’s consideration of the § 3553(a) factors sufficient to
justify a term of incarceration as procedurally reasonable can also demonstrate that the
imposition of special conditions is procedurally reasonable. United States v. Presto,
498 F.3d 415, 419 (6th Cir. 2007) (finding imposition of special condition procedurally
reasonable where “the district court . . . engaged in a single consideration of the
sentencing factors, which embraced both the incarceration sentence and the supervised
release term”).
In outlining its reasons for imposing the sentence of incarceration—from Zobel’s
risk of recidivism to the fact that he “cultivated” and “manipulated” the young
victims—the district court was also outlining the reasons supporting the conditions of
supervised release. The sentencing transcript reveals the district court’s strong concern
with protecting the public from someone who had sexually enticed minors, and barring
Zobel from contacting minors and loitering where minors congregate would address this
concern. Further, the district court concluded that access to pornographic materials
No. 11-3341 United States v. Zobel Page 15
increased Zobel’s risk of recidivism, and only a slight inference is required to conclude
that, in banning these materials, the district court sought to reduce Zobel’s risk of
recidivism and protect the public. Thus, when the district court discussed the § 3553(a)
factors and its reasons for imposing the prison sentence, it was also discussing the
reasons for imposing special conditions. See id. These factors—of which public safety
was most prominent—are “relevant” to the conditions imposed by the district court “and
make the basis of its decision sufficiently clear on the record to permit reasonable
appellate review.” See id. (internal quotation marks omitted). Whether these conditions
were in fact warranted is a question of substantive reasonableness, but the district court’s
overarching rationale in imposing them—public safety—is certainly adequate to allow
for meaningful appellate review. Indeed, Zobel’s case is far afield from those in which
we have remanded because the imposition of special conditions was procedurally
unreasonable. See, e.g., United States v. Inman, 666 F.3d 1001, 1005–07 (6th Cir. 2012)
(per curiam) (remanding on procedural reasonableness grounds where district court had
banned defendant from consuming alcohol and required him to provide financial
information to his probation officer—even though there was no evidence that defendant
was addicted to alcohol and his crime was not financial in nature—and provided no
reasons to justify these conditions).
V.
We finally consider whether the special conditions of supervised release are
substantively reasonable. In determining substantive reasonableness, we look to whether
a condition
(1) is reasonably related to specified sentencing factors, namely the
nature and circumstances of the offense and the history and
characteristics of the defendant, and the need to afford adequate
deterrence, to protect the public from further crimes of the defendant, and
to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective
manner;
(2) involves no greater deprivation of liberty than is reasonably necessary
to achieve these goals; and
No. 11-3341 United States v. Zobel Page 16
(3) is consistent with any pertinent policy statements issued by the
Sentencing Commission.
United States v. Ritter, 118 F.3d 502, 504 (6th Cir. 1997) (citing 18 U.S.C. §§ 3583(d),
3553(a)(1), (a)(2)(B)–(D); U.S.S.G. § 5D1.3(b)). Specifically, we “must determine
whether the ‘condition of supervised release is reasonably related to the dual goals of
probation, the rehabilitation of the defendant and the protection of the public.’”
Brogdon, 503 F.3d at 563 (quoting Ritter, 118 F.3d at 504). “If the conditions are
reasonably related to these goals, they must be upheld.” Id. Because Zobel did not
object to the length or conditions of his supervised release, we review for plain error.
See Inman, 666 F.3d at 1003. In assessing whether the district court erred in imposing
three special conditions of supervised release, we confront two questions: (1) whether
Zobel’s challenge to these specialized conditions is ripe for review; and (2) whether, on
the merits, these conditions are substantively reasonable.
A.
The government argues that Zobel’s challenge to the special conditions is not
ripe for review because it is likely that Zobel will receive treatment during his 150-
month incarceration that could affect the propriety and need for imposing such
conditions. This argument is unconvincing.
Generally, “conditions of supervised release may be ripe for appellate review
immediately following their imposition at sentence.” United States v. Lee, 502 F.3d 447,
449–50 (6th Cir. 2007). Nonetheless, we have occasionally found a defendant’s
challenge to a supervised release condition unripe where the challenged condition was
potential, rather than mandatory. See id. at 450 (challenge to supervised release not ripe
where it “implicate[d] only the potential use of a penile plethysmograph” and where it
was not clear whether such testing would even be employed when defendant was
scheduled to be released) (emphasis added); United States v. Massey, 349 F. App’x 64,
70 (6th Cir. 2009) (finding challenge to optional components of supervised release
conditions not ripe based on the “same reasoning” as articulated in Lee). Here, Zobel’s
conditions do not include anything akin to the potential use of a penile plethysmograph,
No. 11-3341 United States v. Zobel Page 17
and indeed are not potential at all. Rather, they are mandatory. See United States v.
Lantz, 443 F. App’x 135, 139 (6th Cir. 2011) (distinguishing Lee and finding challenge
to special conditions ripe where “[t]he conditions imposed upon Lantz’s release are not
mere possibilities or options”). Nor does United States v. Evers, 669 F.3d 645, 662
(6th Cir. 2012), foreclose our review. Evers involved a sentence much longer than the
one here, included a penile plethysmograph condition not applicable here, and referred
to the discretion of the probation department, which is not relevant here. See id.Accordingly, Zobel’s challenge to his mandatory conditions of supervised release
is ripe for review.
B.
Zobel challenges as substantively unreasonable three of the special conditions
of supervised release that the district court imposed: (1) the “no contact with minors”
condition; (2) the anti-loitering provision; and (3) the prohibition on possessing or
viewing pornography or sexually explicit or suggestive materials.
1. “No contact with minors” condition
The first condition that Zobel challenges bars him from having any contact with
minor children under eighteen years old, even if supervised, unless he secures prior court
approval. The condition does not bar mere incidental interactions with minors. Zobel
argues that this condition is a greater deprivation than is necessary to effect the goals of
sentencing because seeking judicial approval prior to having even supervised contact
with minors could affect his ability to earn a living as a self-employed musician who
depends on teaching and performing music.
We have rejected arguments similar to Zobel’s in the past. In United States v.
Lay, 583 F.3d 436, 440 (6th Cir. 2009), the defendant pled guilty to traveling in
interstate commerce with the intent to engage in sexual activity with a minor, in
No. 11-3341 United States v. Zobel Page 18
violation of 18 U.S.C. § 2423(b), a crime no more serious than Zobel’s.3 Nonetheless,
the district court imposed a condition that barred the defendant from “hav[ing] any
contact with any person under the age of 18, unless his or her parent or legal guardian
is present or [the defendant] notifies the parent or guardian about his conviction.” Id.
at 456 (Merritt, J., dissenting). We upheld this significant condition on grounds that it
was “designed to protect the public from potential recidivism.” Id. at 450 (majority
opinion). Here, the district court explained that Zobel’s sentence was largely based on
“the safety of the community” and Zobel’s moderate risk of re-offending. Because
Zobel enticed two minors to perform sexual acts, this condition—which restricts his
access to minors—is “reasonably related to the . . . protection of the public” and
therefore “must be upheld.” See Brogdon, 503 F.3d at 563 (internal quotation marks
omitted).
Zobel further argues that this condition would restrict his ability to have contact
with his own children, should he one day become a father. We have recognized “that
parents have a fundamental liberty interest in the custody of their children,” Eidson v.
Tenn. Dep’t of Children’s Srvs., 510 F.3d 631, 635 (6th Cir. 2007), but we have not
decided the precise challenge that Zobel raises here. However, the Eighth and Third
Circuits have reached different conclusions on this issue. Compare United States v.
Kerr, 472 F3.d 517, 523 (8th Cir. 2006) (upholding no-contact provision on grounds that
“because [defendant] is childless, he is not restricted from contacting his own children”),
with United States v. Loy, 237 F.3d 251, 270 (3d Cir. 2001) (finding no-contact provision
constitutionally problematic if interpreted to extend to childless defendant’s future
children and thus interpreting provision narrowly not to apply to defendant’s own
potential offspring). This split of authority relieves us from resolving Zobel’s challenge
because, even if the district court’s imposition of this condition was in error, “the very
existence of a reasonable disagreement on this point precludes the conclusion that the
error was plain.” United States v. Madden, 515 F.3d 601, 608 (6th Cir. 2008); United
3
Indeed, the crime committed in Lay was arguably less serious than Zobel’s. In Lay, the
defendant pled guilty to 18 U.S.C. § 2423(b), which carries no statutory minimum sentence, whereas Zobel
pled guilty to 18 U.S.C. § 2422(b), which carries a mandatory minimum sentence of ten years.
No. 11-3341 United States v. Zobel Page 19
States v. Williams, 53 F.3d 769, 772 (6th Cir. 1995) (holding that a “circuit split
precludes a finding of plain error”). Moreover, should this condition become too
onerous for Zobel in the future, he remains free to petition the district court to modify
it. See 18 U.S.C. § 3583(e)(2).
2. Anti-loitering condition
Zobel also objects to the anti-loitering provision, which states that “the defendant
shall be prohibited from loitering where minors congregate, such as playgrounds,
arcades, amusement parks, recreation parks, sporting events, shopping malls, swimming
pools, etc.” Zobel argues that the condition is unconstitutionally vague and that it does
not clearly advance the goals of rehabilitation, deterrence or public safety. Neither
argument is compelling.
First, provisions that include anti-loitering language have withstood vagueness
challenges. See United States v. Oliphant, 456 F. App’x 456, 458–59 (5th Cir. 2012)
(upholding against vagueness challenge condition stating that defendant “shall not have
access to or loiter near school grounds, parks, arcades, playgrounds, amusement parks
or other places where children by [sic] frequently congregate”); United States v.
Burroughs, 613 F.3d 233, 246 & n.3 (D.C. Cir. 2010) (upholding against vagueness
challenge condition barring defendant from “loiter[ing] in any place where children
congregate”). The anti-loitering provision here is extremely similar to the provisions our
sister circuits have upheld, and is not “so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application.” See Ass’n of Cleveland
Fire Fighters v. City of Cleveland, 502 F.3d 545, 551 (6th Cir. 2007) (internal quotation
marks omitted).
Second, because Zobel was convicted of sexual enticement of a minor,
prohibiting Zobel from loitering near places where children congregate is reasonably
related to the goal of public safety. Even defendants whose crimes involved no physical
contact with minors have been bound by anti-loitering provisions like the one here. See
United States v. Rearden, 349 F.3d 608, 620 (9th Cir. 2003) (shipping child
No. 11-3341 United States v. Zobel Page 20
pornography); United States v. Ristine, 335 F.3d 692, 696–97 (8th Cir. 2003) (receiving
child pornography). Thus, it was not plain error to impose an anti-loitering condition.
3. No possession of pornography or sexually explicit or suggestive materials
condition
Finally, Zobel contends that the condition barring him from possessing
pornography or sexually explicit or suggestive materials is unconstitutionally vague and
overbroad. The condition reads in full:
The defendant shall not possess or view pornography of any kind. The
defendant shall not view, listen to, or possess anything sexually explicit
or suggestive, including, but not limited to, books, videos, magazines,
computer files, and internet sites.
“As the Supreme Court recently observed, vagueness and overbreadth are distinct
concerns, the first implicating the Due Process Clause and the latter the First
Amendment.” United States v. Farhane, 634 F.3d 127, 136 (2d Cir. 2011) (citing
Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010)). Regarding
vagueness, it is well established that “‘[a] statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application, violates the first essential of due
process of law.’” Ass’n of Cleveland Fire Fighters, 502 F.3d at 551 (quoting Connally
v. Gen. Constr. Co., 269 U.S. 385, 391 (1925)). These same principles apply to a
condition of supervised release. Loy, 237 F.3d at 262; United States v. Schave, 186 F.3d
839, 843 (7th Cir. 1999).
We first consider the parts of this provision that ban “pornography” and
“sexually explicit” materials and then consider the part that bans “sexually suggestive”
materials.
a.
The circuits are divided as to whether bans on “pornography” or “pornographic
materials” are unconstitutionally vague, and thus we cannot find plain error for imposing
such a ban here. See Lantz, 443 F. App’x at 140–41 (listing cases and noting it would
No. 11-3341 United States v. Zobel Page 21
be inappropriate to find plain error given the circuit split). Nor can we disturb on
vagueness grounds the ban on “sexually explicit” materials. The phrase “‘sexually
explicit material’ is a narrower category of material than ‘pornography,’” United States
v. Thompson, 653 F.3d 688, 695 (8th Cir. 2011), in part because “sexually explicit
conduct” is specifically defined under federal law, see 18 U.S.C. § 2256(2)(B). And
since a ban on the broader category of “pornography” must withstand plain error review
on a vagueness challenge, then so too must a ban on the narrower category of “sexually
explicit” material.
We are also unpersuaded that the condition banning “pornography” and “sexually
explicit” materials is overbroad as applied to Zobel. Bans on explicit material involving
adults certainly raise First Amendment implications, United States v. Thielemann,
575 F.3d 265, 272 (3d Cir. 2009), and are thus “subject to careful review,” United States
v. Ritter, 118 F.3d 502, 504 (6th Cir. 1997). However, as long as these bans are
“primarily designed to meet the ends of rehabilitation and protection of the public, they
are generally upheld.” Id.Zobel contends that this condition is overbroad because it is not reasonably
related to the objectives of sentencing. But because the district court did not abuse its
discretion in considering Zobel’s addiction to pornography a risk factor that increased
his likelihood of recidivism, see Part III, supra, it did not commit plain error in banning
the possession of such materials on grounds that doing so would decrease Zobel’s
likelihood of recidivism. Indeed, Zobel appears to admit that the ban would decrease his
likelihood to reoffend, but argues that his “chances of reoffending are not proportionally
decreased” by the ban. However, a condition need not be perfectly proportionate to the
objectives it seeks; it must only be “reasonably related” to specified sentencing factors
and “involve[] no greater deprivation of liberty than is reasonably necessary” to achieve
the goals of sentencing. 18 U.S.C. § 3583(d)(1)–(2) (emphases added).
And while we recognize that Zobel was not convicted of a crime involving child
pornography, the paradigmatic case in which these bans are imposed, the question is not
whether we would impose the same sentence; it is whether the district court committed
No. 11-3341 United States v. Zobel Page 22
plain error. Roush, the government’s expert, included Zobel’s self-admitted addiction
to pornography as a recidivism risk factor. Despite the fact that Roush downplayed on
cross-examination the connection between pornography and hands-on sexual offenses,
he provided an analysis and report that the district court ultimately found convincing and
credible. As a result, there is evidence on the record of a specific nexus between Zobel’s
addiction to pornography and his risk of recidivism. Tellingly, appellate courts have
generally struck down bans on possessing adult pornography only where the record
failed to indicate any nexus between the condition and the goals of supervised release.
See United States v. Perazza-Mercado, 553 F.3d 65, 76 (1st Cir. 2009) (striking down
ban on possessing pornography in child sex abuse case where “[t]here was no suggestion
in the PSR or at sentencing that appellant had abused or even possessed pornography in
the past, much less that it contributed to his offense or would be likely to do so in the
future”); United States v. Voelker, 489 F.3d 139, 153 (3d Cir. 2007) (striking down
lifetime ban on possession of sexually explicit materials in child pornography case and
remanding where “the [district] court once again failed to provide an analysis or
explanation to support this broad restriction”). Although the nexus here may not be as
strong as in other cases, see, e.g., Thielemann, 575 F.3d at 274, because the district court
relied upon the connection that Roush drew between Zobel’s pornography addiction and
his risk of recidivism, its ban on “pornography and “sexually explicit” materials was
“primarily designed to meet the ends of rehabilitation and protection of the public” and
must therefore be upheld on plain error review. See Ritter, 118 F.3d at 504.
b.
Nonetheless, we vacate the part of this condition that bans materials that are
merely “sexually suggestive.” This part of the condition is facially overbroad. The word
“suggestive” means “giving a suggestion or hint.” Webster’s Third New International
Dictionary 2286 (unabridged ed. 1981). Thus, this condition would bar Zobel from
possessing or viewing anything containing a mere hint or suggestion of sex—an
extremely wide prohibition that, in today’s society, would extend to a host of both high-
brow and mainstream literature, art, music, television programs, and movies. In Lantz,
No. 11-3341 United States v. Zobel Page 23
we recently struck down on plain error review a very similar condition that purported to
ban any material that “alludes to sexual activity.” 443 F. App’x at 141. As we
explained:
Not only would such a ban [on possessing materials that allude to sexual
activity] prohibit the defendant from reading significant parts of the Old
Testament—Proverbs 7, The Song of Solomon, and II Samuel 11 come
immediately to mind—it would encompass an enormous swath of
literature, music, and other media. Indeed, [the defendant] arguably
could not possess even a television—which broadcasts sexual allusion in
everything from afternoon soap operas through prime time “drama”—or
a radio—which subjects listeners to such things as annoyingly persistent
advertisements for “male enhancement” products.
Id. The same logic applies here. Bans on “sexually suggestive” materials and those that
“allude to sexual activity” are equally capacious and thus equally problematic. As in
Lantz, the ban on “sexually suggestive” materials cannot survive plain error review
because the error is “clear and obvious; it affects substantial First Amendment rights to
receive information and to freely exercise religion; and it calls into question the fairness
of the proceedings because of the severity of the restriction.” Id. (internal citations
omitted). Thus, we vacate the part of this condition that bans Zobel from possessing or
viewing materials that are merely “sexually suggestive.”
VI.
For the foregoing reasons, we vacate the part of the special condition that bars
Zobel from viewing, listening to, or possessing anything that is “sexually suggestive.”
However, we affirm the judgment of the district court in all other respects and remand
for proceedings consistent with this opinion.
No. 11-3341 United States v. Zobel Page 24
_______________
DISSENT
_______________
KAREN NELSON MOORE, Circuit Judge, dissenting. A district court must
state in open court and in a written statement of reasons the specific reason it is imposing
an outside-guidelines sentence on a defendant. 18 U.S.C. § 3553(c)(2). Because the
district court failed to state a specific reason for its fifteen-month upward variance both
in open court and in its written statement of reasons, the district court committed plain
error. The majority, however, nonetheless affirms. I respectfully dissent.
Section 3553(c)(2) imposes three procedural requirements in conjunction with
the imposition of a sentence outside the guidelines range:
The court, at the time of sentencing, shall state in open court the reasons
for its imposition of the particular sentence, and, if the sentence . . . is
outside the range . . . , the specific reason for the imposition of a sentence
different from that described [in the guidelines], which reasons must also
be stated with specificity in a statement of reasons form . . . .
§ 3553(c)(2). It is not in dispute that the district court failed to state in open court a
specific reason for the fifteen-month variance or even that it was imposing a variance.
It is further undisputed that the post-sentencing written statement of reasons also failed
to identify a sufficiently specific reason for the stated variance.
Failure to adhere to these procedural requirements is a significant procedural
error. Gall v. United States, 552 U.S. 38, 51 (2007) (explaining that on review,
an appellate court “must first ensure that the district court committed no
significant procedural error, such as . . . failing to adequately explain the chosen
sentence—including an explanation for any deviation from the Guidelines range”);
United States v. Blackie, 548 F.3d 395, 400–01 (6th Cir. 2008) (“A sentence imposed
without complying with the requirements of § 3553(c) constitutes error.”). As we have
explained before, “[t]hese requirements are more than mere administrative burdens or
meaningless formalities, but rather assure that the court has properly calculated the
No. 11-3341 United States v. Zobel Page 25
applicable Guidelines range, and that adequate explanation is provided to allow for
meaningful appellate review and the perception of a fair sentence.” Blackie, 548 F.3d
at 401.
By failing to adhere to two of the three § 3553(c) requirements, the district court
has precluded us from reviewing whether it relied upon a specific reason and whether
invocation of this reason in imposing a variance is supported by the record. Our inability
to engage in a meaningful review of the imposed sentence is illustrated by the majority’s
guesswork in this portion of its opinion. Although it may be true that all of the § 3553(a)
factors supported the fifteen-month variance, as is asserted by the majority, whether this
was the basis for the given variance is nothing more than speculation. The district court
could have relied upon any number of the § 3553(a) factors discussed at Zobel’s
sentencing hearing in imposing his sentence, not to mention the universe of potential
unenumerated or improper reasons. As admitted by the majority, the written statement
of reasons, in which the district court merely checked the box for two broad § 3553(a)
factors, does not clarify the reasons on which it relied for the upward variance. In
addition to precluding meaningful appellate review, the district court’s errors create
difficulties for the defendant. When a court fails to adhere to these procedural
requirements, a defendant leaves his sentencing hearing unable to discern why he has
received a particular sentence, and, as in Zobel’s case, when this error is not corrected,
he will never attain such clarity.
Moreover, this court has found plain error in a case with material facts that are
indistinguishable from those at hand. In Blackie, we determined that the district court
did not provide a specific reason for its outside-guidelines sentence when it failed to
state expressly that the sentence was outside the guidelines range and to give a specific
reason for the variance. Blackie, 548 F.3d at 401. Further, because the district court’s
written order merely identified its reasons for classifying the sentence as “above the
advisory guideline range” by checking two boxes and declining to justify its reasoning
in the allotted space, we found that it lacked the requisite specificity. Id. We then
concluded that “[g]iven the clarity of § 3553(c)(2), the district court plainly erred when
No. 11-3341 United States v. Zobel Page 26
it did not refer to the applicable Guidelines range and failed to provide its specific
reasons for an upward departure or variance at the time of sentencing or in the written
judgment and commitment order.” Id. at 401–02 (emphasis in original).
The majority in this case attempts to distinguish Blackie by pointing to the fact
that in Zobel’s sentencing hearing, the district court referenced the applicable guidelines
range and engaged in an analysis of the § 3553(a) factors. These facts, however, are
immaterial to the issue raised on appeal. Instead, these facts establish the already
undisputed proposition that the district court properly effectuated the first of the three
requirements under § 3553(c). The district court’s completion of one requirement,
however, does not cure its failure to comply with the others, as a general discussion of
the § 3553(a) factors neither allows an appellate court to engage in meaningful review
of the variance nor promotes the perception of a fair sentence.
Even more grievous, though, than relying upon a broad discussion of the
§ 3553(a) factors to establish the specific reason for a variance is the majority’s
insistence that a procedurally deficient document can cure a procedurally deficient
sentencing hearing. Specifically, the majority contends that the written statement of
reasons, which “[s]tanding alone, . . . would lack the requisite level of specificity and
result in remand,” can fill the gaps left open by the district court at the sentencing
hearing that “can fairly be criticized for lack of specificity.” Majority Op. at 6, 9
(internal quotation marks omitted). When a district court fails to adhere to significant
procedural requirements at two distinct stages of a sentencing, there are two bases for
plain error. The majority’s conclusion—that one procedural error would result in plain
error, yet two procedural errors produce a procedurally reasonable sentence—defies
logic.
The district court committed plain error when it did not comply with the
§ 3553(c)(2) requirements that it state in open court and in its written statement of
reasons the specific reason for imposing an outside-guidelines sentence. I would vacate
and remand for resentencing, and, therefore, I respectfully dissent.