United States v. Autery ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-30424
Plaintiff-Appellant,
v.  D.C. No.
CR-06-00387-REJ
JIM BRYAN AUTERY,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Argued and Submitted
October 20, 2008—Portland, Oregon
Filed February 13, 2009
Before: David R. Thompson, A. Wallace Tashima, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Partial Concurrence and Partial Dissent by Judge Tashima
1781
UNITED STATES v. AUTERY 1783
COUNSEL
Karin J. Immergut and Gregory R. Nyhus, District of Oregon
United States Attorney’s Office, Portland, Oregon, for the
plaintiff-appellant.
1784 UNITED STATES v. AUTERY
Wayne Mackeson, Portland, Oregon, for the defendant-
appellee.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
Defendant-Appellee Jim Bryan Autery pled guilty to pos-
session of child pornography and entered into a plea bargain
that called for the imposition of a forty-one to fifty-one month
prison sentence pursuant to the United States Sentencing
Guidelines. The district court deviated from the Guidelines
and imposed a sentence of five years probation. The govern-
ment did not object to the sentence when the district court
imposed it, but now appeals, arguing that the sentence is sub-
stantively unreasonable.
We hold that the appropriate standard of review under the
circumstances of this case is abuse of discretion. Reviewing
the sentence under that standard, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Based on evidence obtained in a U.S. Postal Service and
Immigration and Customs Enforcement sting operation,
Autery was indicted in September 2006 on two counts of
attempted receipt of child pornography, one count of posses-
sion of child pornography, and a forfeiture allegation. Follow-
ing Autery’s arrest, federal agents found at least 150 images
of child pornography1 stored in Autery’s personal computers.
Autery pled guilty in May 2007 to one count of possession
of child pornography, a violation of 18 U.S.C.
§ 2252A(a)(5)(b), pursuant to a plea agreement. The pre-
1
The precise number of images is disputed.
UNITED STATES v. AUTERY 1785
sentence report (PSR) calculated Autery’s offense level to be
twenty-two, and his criminal history within Category I, yield-
ing a Guidelines range of between forty-one and fifty-one
months incarceration.
Autery was sentenced before United States District Judge
Robert E. Jones on October 1, 2007. Both parties and the
court accepted the accuracy of the PSR sentencing calcula-
tions. The government requested that the court impose a fifty-
one month sentence—at the top of the Guidelines range—and
the defense urged the court to impose a sentence at the bottom
of the Guidelines range. The court did neither; it deviated
from the Guidelines and sentenced Autery to no period of
incarceration and five years of probation. In doing so, the
court explained its decision both from the bench and in a
“Statement of Reasons” in a Judgment in a Criminal Case
order.
At sentencing, the court noted that it was “required to make
the determinations under the sentencing guidelines and then
after that, look at the guidelines as advisory only.” The court
then confirmed that pro-forma application of the Guidelines
would yield a range of forty-one to fifty-one months incarcer-
ation.
The court began its analysis of the appropriate sentence by
noting that Autery’s was “a very difficult case” because there
was “no evidence that [Autery] was purchasing evident child
pornography involving real children”2 (although the court
stated that Autery believed they were real children). The court
also noted that there was no evidence of Autery’s ever abus-
2
The court may have been referring to the images that Autery received
in the government sting operation, images which the government stated
were not of real children. Count 3 of the indictment, to which Autery pled
guilty, alleges that Autery possessed “visual depictions of actual minors.”
Regardless, the government does not argue that the district court erred in
making this finding or in considering it in sentencing.
1786 UNITED STATES v. AUTERY
ing family members and that he did not “fit the profile of a
pedophile.” These facts, the court concluded, made Autery
“totally different than what . . . [the] court has normally expe-
rienced with people who are ordering this sort of child por-
nography.”
The court also described what it considered to be Autery’s
redeeming personal characteristics: no history of substance
abuse, no “interpersonal instability,” no “sociopathic or crimi-
nalistic attitudes,” and that he was motivated and intelligent.
The court thought it critical that Autery enjoys the continuing
support of his family, especially his wife and children.
The court acknowledged that child pornography is “terrible
stuff” and that it believed Autery “ordered it knowing that it
was wrong and illegal.” But the court found that in several
ways, Autery’s case differed from the “hundreds and hun-
dreds” of other child pornography cases the court had adjudi-
cated.
The court also believed that Autery could not “be accom-
modated adequately in a federal institution,” and that he
needed “outpatient psychiatric monitoring and management”
instead. Concluding its sentencing justification, the court
stated that it decided on a sentence of probation only “after a
lot of soul-searching.” It further determined that imposing
prison time would create “a much more disruptive situation
and, actually, could be more damaging than the rehabilitation
[regime the court believed would] work.” The court also
opined in its written “Statement of Reasons” that the sentence
“is fully justified in this exceptional case.”
The court observed that the five-year probationary sentence
“would be subject to some very special conditions of supervi-
sion.” It also warned Autery, saying, “believe me, if you have
any violation [of those conditions], you’ll be back before me
and receive the maximum penalty allowed by law.” Some of
the conditions of probation included a prohibition on viewing
UNITED STATES v. AUTERY 1787
any pornography whatsoever and on being within 100 feet of
places where minors congregate unless approved by his pro-
bation officer. Autery was also not permitted to travel outside
the State of Oregon without prior approval. He was required
to participate in mental health evaluation and counseling,
including psychotherapy, and to take any prescription drugs
as directed. He was not permitted to possess any firearm, or
to use any computer except for work, or, without approval,
any other electronic media—such as a personal digital assis-
tant or cellular phone—with Internet capability. In addition,
Autery was not permitted to have “direct or indirect” contact
with anyone under the age of eighteen, except his own chil-
dren. Finally, Autery was required to register with the state
sex offender registry.
After imposing sentence and discussing the terms of the
probation, the court asked the government if it had anything
else for the court. The government said it did not, and specifi-
cally, it did not object to the sentence or its method of deter-
mination. The government now appeals the sentence,
challenging it as substantively unreasonable.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 18 U.S.C. § 3742(b)(3) and 28
U.S.C. § 1291.
Before deciding whether to uphold the district court’s sen-
tence, we must first determine the appropriate standard of
review under the facts presented. After weighing Supreme
Court authority, the views of other circuits, and public policy
considerations, we hold that abuse of discretion is the proper
standard of review in this case.
The government urges, without providing analysis, that the
standard of review here is abuse of discretion. In support, it
cites Gall v. United States, 128 S. Ct. 586, 591 (2007).
1788 UNITED STATES v. AUTERY
Autery, without citing any authority, urges the court to
employ a plain error standard.
[1] Neither this circuit nor the Supreme Court has squarely
addressed the proper standard of review where the appellant
fails to object to the sentence’s substantive reasonableness at
sentencing. In Gall, the Court noted that after Booker, appel-
late review of sentencing decisions is limited to determining
whether they are reasonable, Gall, 128 S. Ct. at 591, and that
the abuse of discretion standard applies to review of all rea-
sonableness sentencing questions. Id. at 594. However, the
Court did not indicate whether this rule applies even where a
party fails to object at sentencing to the substantive reason-
ableness of the sentence.
In United States v. Carty, we stated that the reviewing court
“first consider[s] whether the district court committed signifi-
cant procedural error, then . . . consider[s] the substantive rea-
sonableness of the sentence.” 520 F.3d 984, 993 (9th Cir.
2008) (citing Gall, 128 S. Ct. at 597). However, Carty did not
discuss the proper standard of review upon a party’s failure to
object to either alleged error.
In United States v. Sylvester Norman Knows His Gun, III,
438 F.3d 913 (9th Cir. 2005) (Knows His Gun), we consid-
ered a closely related issue that provides a useful starting
point for the next step of our analysis. In Knows His Gun, we
held that a party’s failure to object “on the ground that the dis-
trict court did not sufficiently address and apply the factors
listed in § 3553(a)” triggered plain error review.3 Id. at 918;
3
Section 3553(a) of United States Code Title 18 requires the district
court to consider the following factors in sentencing (the § 3553(a) fac-
tors):
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed-
UNITED STATES v. AUTERY 1789
see also United States v. Waknine, 543 F.3d 546, 553-54 &
n.4 (9th Cir. 2008) (applying Knows His Gun and reversing
in part where the district court failed to consider any
§ 3553(a) factors).
Knows His Gun and its progeny illustrate the crucial—but
often-overlooked—distinction between procedural error and
substantive reasonableness. See Carty, 520 F.3d at 993 (citing
18 U.S.C. § 3553(a)). In Carty, we held that “[o]n appeal, we
first consider whether the district court committed significant
procedural error, then we consider the substantive reasonable-
ness of the sentence.” Id. Elaborating, we explained that
[i]t would be procedural error for a district court to
fail to calculate—or to calculate incorrectly—the
Guidelines range; to treat the Guidelines as manda-
tory instead of advisory; to fail to consider the
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defen-
dant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
[and recommended by the Guidelines] . . . ;
(5) any pertinent policy statement . . . issued by the Sentencing
Commission . . . ;
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty
of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
1790 UNITED STATES v. AUTERY
§ 3553(a) factors; to choose a sentence based on
clearly erroneous facts; or to fail adequately to
explain the sentence selected, including any devia-
tion from the Guidelines range.
Id. (emphasis added) (citing Gall, 128 S. Ct. at 597). But “[i]n
determining substantive reasonableness, we are to consider
the totality of the circumstances, including the degree of vari-
ance for a sentence imposed outside the Guidelines range.” Id.
(emphasis added).
Thus, it is possible for a sentence to pass procedural muster
and yet be substantively unreasonable. As a result, Knows His
Gun’s standard of review rule for whether the district court
“sufficiently address[ed] and appl[ied] the factors listed in
§ 3553(a)” does not apply in a case where the sentencing
court carefully considered the statutory factors listed in Carty,
and the sole issue is substantive reasonableness. That is the
situation here, as the government’s chief argument on appeal
is that the sentence is substantively unreasonable. See Appel-
lant’s Br. at 10, “Summary of Argument” (“This sentence rep-
resents a departure of 41 - 51 months or 22 levels from the
low end of the applicable Sentencing Guideline range . . . .
This sentence is plainly ‘unreasonable’ under 18 U.S.C.
§ 3553(a).”). The government buttresses its argument with
references to the § 3553(a) factors and contends that the dis-
trict court’s unreasonable weighing of those factors rendered
the resulting sentence unreasonable, but the government
alleges neither that the district court failed to address the fac-
tors, nor that it committed any other procedural error. There-
fore, Knows His Gun does not resolve the appropriate
standard of review in this case.
[2] While neither the Supreme Court nor this circuit has
squarely resolved the standard of review at issue here, a few
other circuits have done so. The slight majority of those
courts has held that where no objection was made to the sen-
tence at sentencing, the court still reviews for abuse of discre-
UNITED STATES v. AUTERY 1791
tion to determine whether the sentence was reasonable. See,
e.g., United States v. Bras, 483 F.3d 103, 113 (D.C. Cir.
2007) (rejecting argument that non-objecting defendant’s sen-
tence should be reviewed for plain error because
“[r]easonableness . . . is the standard of appellate review, not
an objection that must be raised upon the pronouncement of
a sentence”) (citation omitted); United States v. Castro-
Juarez, 425 F.3d 430, 434 (7th Cir. 2005) (holding that “re-
view of a sentence for reasonableness is not affected by
whether the defendant had the foresight to label his sentence
‘unreasonable’ before the sentencing hearing adjourned”); cf.
United States v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir.
2006) (noting that the Seventh Circuit’s Castro-Juarez’s stan-
dard of review applies to challenges to the reasonableness of
a sentence’s length, but holding that unchallenged errors in
the method of sentence determination are still reviewed for
plain error). But see United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007) (holding that “a defendant’s failure to
object at sentencing to the reasonableness of his sentence”
triggers plain error review).4
While instructive and often persuasive, other circuits’ deci-
sions do not bind this court; in the absence of controlling
authority, our approach should be guided by consideration of
the legal and policy rationales underlying the alternatives. Cf.
Biro v. United States, 24 F.3d 1140, 1142 (9th Cir. 1994).
[3] In Castro-Juarez, the Seventh Circuit reasoned that
“[t]o insist that defendants object at sentencing to preserve
appellate review for reasonableness would create a trap for
unwary defendants and saddle busy district courts with the
burden of sitting through an objection-probably formulaic-in
every criminal case.” 425 F.3d at 433-34. “Since the district
4
Although each of the authorities establishing the abuse of discretion
standard of review involves the defendant’s failing to object to his sen-
tence, no principled reason exists to apply a different rule where the gov-
ernment similarly fails to object.
1792 UNITED STATES v. AUTERY
court will already have heard argument and allocution from
the parties and weighed the relevant § 3553(a) factors before
pronouncing sentence,” the court reasoned, “we fail to see
how requiring the defendant to then protest the term handed
down as unreasonable will further the sentencing process in
any meaningful way.” Id. at 434.
The Fifth Circuit has taken a different approach. In defend-
ing the plain error standard, the court in United States v. Pel-
tier stressed the longstanding rule that issues are not
preserved for appeal unless objected to in the district court.5
505 F.3d at 391-92 (calling the objection rule “one of the
most familiar procedural rubrics in the administration of jus-
tice”) (quoting United States v. Calverley, 37 F.3d 160, 162
(5th Cir. 1994) (en banc), abrogated on other grounds). Pel-
tier further states that the objection requirement “serves a crit-
ical function by encouraging informed decisionmaking and
giving the district court an opportunity to correct errors before
they are taken up on appeal.” Id. at 392.
We find Castro-Juarez’s reasoning more persuasive than
5
In Peltier, the Fifth Circuit acknowledged that the Seventh Circuit held
that a defendant need not object at sentencing to the reasonableness of his
sentence to preserve the issue for review, and then stated that various other
circuits have taken a contrary view. 505 F.3d at 391. In support of this lat-
ter point, the court cited decisions from the Second, Sixth, Tenth, Third,
and Ninth Circuits. Id. at 391 n.5. In so doing, however, the Peltier court
apparently mistook the holdings of some of those cases, conflating sub-
stantive reasonableness with the procedural failure to consider the
§ 3553(a) factors, discussed supra. See id. (citing, e.g., United States v.
Villafuerte, 502 F.3d 204, 208-09 (2d Cir. 2007) (holding that failure to
object to court’s neglecting to consider the § 3553(a) factors (not to sub-
stantive reasonableness of sentence) triggers plain error review); Knows
His Gun, 438 F.3d at 918 (holding that failure to object “on the ground
that the district court did not sufficiently address and apply the factors
listed in § 3553(a)” triggered plain error review)). Thus, contrary to the
Peltier court’s characterization, the circuits listed above have not all
clearly held that unobjected-to sentences challenged for substantive unrea-
sonableness are subject to plain error review.
UNITED STATES v. AUTERY 1793
Peltier’s. Peltier notes that a key rationale for requiring for-
mal objection to a potential error is to allow the district court
to hear and weigh the parties’ positions, thus avoiding or cor-
recting that error. 505 F.3d at 392. This rationale makes sense
in many contexts, such as where the court miscalculates the
Guidelines sentencing range or neglects to consider an essen-
tial statutory factor. But in a substantive reasonableness chal-
lenge, the parties have already fully argued the relevant issues
(usually both in their briefs and in open court), and the court
is already apprised of the parties’ positions and what sen-
tences the parties believe are appropriate. In such a case,
requiring the parties to restate their views after sentencing
would be both redundant and futile, and would not “further
the sentencing process in any meaningful way.” Castro-
Juarez, 425 F.3d at 434.
[4] Therefore, for the reasons described in Castro-Juarez,
we hold that the substantive reasonableness of a sentence—
whether objected to or not at sentencing—is reviewed for
abuse of discretion. We proceed to review Autery’s sentence
under that standard.
DISCUSSION
In the post-Booker era, district courts making sentencing
decisions must make the Guidelines “the starting point and
the initial benchmark” for their decisions. Gall v. United
States, 128 S. Ct. 586, 596 (2007); United States v. Carty, 520
F.3d 984, 992 (9th Cir. 2008) (quoting Gall). While district
courts are not required to impose a sentence within the Guide-
lines, Booker, 543 U.S. at 249-53, they must “give serious
consideration to the extent of any departure from the Guide-
lines,” and they must then “explain [the] conclusion that an
unusually lenient or an unusually harsh sentence is appropri-
ate in a particular case with sufficient justifications.” Carty,
520 F.3d at 992 (quoting Gall, 128 S. Ct. at 594).
The Supreme Court has emphasized that “extraordinary cir-
cumstances” are not a prerequisite to upholding a sentence
1794 UNITED STATES v. AUTERY
outside the Guidelines. Gall, 128 S. Ct. at 594 (internal quota-
tion marks omitted). Indeed, sentences outside the Guidelines
are subject to the same standard—i.e., abuse of discretion—as
those within the Guidelines. Id. at 596 (noting that “abuse-of-
discretion standard of review applies to appellate review of all
sentencing decisions—whether inside or outside the Guide-
lines range”). And where the sentence under review is outside
the Guidelines, we may not presume the sentence is unreason-
able. Id. at 597. We may, however, “take the degree of vari-
ance into account and consider the extent of a deviation from
the Guidelines.” Id. at 595.
“While the Guidelines are to be respectfully considered,
they are one factor among the § 3553(a) factors that are to be
taken into account in arriving at an appropriate sentence.”
Carty, 520 F.3d at 991 (citing Kimbrough v. United States,
128 S. Ct. 558, 570 (2007)). “[T]he Guidelines factor [may
not] be given more or less weight than any other.” Id. So
while the Guidelines are the “starting point and initial bench-
mark” and must “be kept in mind throughout the [sentencing]
process,” id., the Guidelines range constitutes only a touch-
stone in the district court’s sentencing considerations. See id.
Thus, in sum, the district court must consider both the seven
§ 3553(a) factors and the Guidelines when imposing sentence.6
Finally, appellate courts must “give due deference to the
district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.”7 Gall, 128 S. Ct. at 597.
6
Section 3553(a)(4) incorporates consideration of the Guidelines by ref-
erence, requiring the court to consider “the kinds of sentence and the sen-
tencing range established [and recommended by the Guidelines].”
7
The Gall Court repeatedly refers to “variances” from the sentencing
range, instead of “departures.” Gall was decided before Irizarry v. United
States, 128 S. Ct. 2198, 2203-04 (2008), in which the Court clarified that
the two terms continue to have legally distinctive meanings post-Booker.
Moreover, as a concurring Sixth Circuit judge noted recently in United
States v. Smith, “the word ‘variance,’ . . . has been used both precisely and
UNITED STATES v. AUTERY 1795
This deference is required because the sentencing judge “is in
a superior position to find facts and judge their import under
§ 3553(a) in the individual case. The judge sees and hears the
evidence, makes credibility determinations, has full knowl-
edge of the facts and gains insights not conveyed by the
record.” Id. “The sentencing judge has access to, and greater
familiarity with, the individual case and the individual defen-
dant before him than the Commission or the appeals court.”
Id. at 597-98 (citing Rita v. United States, 127 S. Ct. 2456,
2469 (2007)). Moreover, “[d]istrict courts have an institu-
tional advantage over appellate courts in making these sorts
of determinations, especially as they see so many more
Guidelines sentences than appellate courts do.” Id. (citing
Koon v. United States, 518 U.S. 81, 98 (1996)). In arriving at
a sentence, a district court need not expressly state how each
of the § 3553(a) factors influenced its decision: “[t]he district
court need not tick off each of the § 3553(a) factors to show
that it has considered them.” Carty, 520 F.3d at 992. Instead,
appellate courts “assume that district judges know the law and
understand their obligation to consider all of the § 3553(a)
factors, not just the Guidelines.” Id. (citing Walton v. Arizona,
497 U.S. 639, 653 (1990)).
With these principles in mind, we review the district court’s
sentence to determine whether the court abused its discretion
in imposing it. We conclude that it did not.
The government first argues that the district court did not
treat the Guidelines range as a “benchmark.” The sentencing
transcript belies that claim. Before announcing and explaining
the basis for the sentence, the district court stated that it was
imprecisely post-Booker to refer to certain departures from the advisory
guideline range. When used precisely, the term ‘variance’ refers to depar-
tures based on § 3553(a) factors rather than departures under § 5, Part K,
of the guidelines.” 474 F.3d 888, 896 n.3 (6th Cir. 2007) (Gibbons, J.,
concurring).
1796 UNITED STATES v. AUTERY
“required to make the determinations under the sentencing
guidelines and then after that, look at the guidelines as advi-
sory only.” The court referred to the Guidelines range twice
again during its sentencing explanation. To the extent the gov-
ernment’s argument alleges procedural error rather than sub-
stantive unreasonableness, it is reviewed for plain error.
Knows His Gun, 438 F.3d at 918. Regardless, the govern-
ment’s argument fails under abuse of discretion review, and
a fortiori, it fails under plain error review.
Next, the government argues that the district court unrea-
sonably applied the § 3553(a) and Guidelines factors in seven
ways, thus rendering the sentence substantively unreasonable.
We address each argument in turn.
1. Nature and Circumstances of the Offense
[5] The government claims that the district court failed to
reasonably consider the “nature and circumstances of the
offense,” as required by 18 U.S.C. § 3553(a)(1). Specifically,
the government notes that Autery actively solicited the por-
nography instead of just possessing it and that the court never
mentioned this during the hearing. The record, however,
shows that the court did reasonably consider the nature of the
offense. While acknowledging that the illicit material was
“terrible stuff” and that Autery had “ordered it knowing that
it was wrong and illegal,” the district court stated that there
was “no evidence that [Autery] was purchasing evident child
pornography involving real children.” Moreover, there was a
dispute over whether Autery solicited customized material
(thus contributing directly to child exploitation), and that act
was not an element of the offense to which Autery pled guilty.
Certainly, the district court could have expressly considered
this fact in fashioning an appropriate sentence. See Rita, 127
S. Ct. at 2465-66 (noting that “[t]his Court’s Sixth Amend-
ment cases do not automatically forbid a sentencing court to
take account of factual matters not determined by a jury and
to increase the sentence in consequence”). However, espe-
UNITED STATES v. AUTERY 1797
cially given the uncertainty of the evidence on this issue, the
district court did not abuse its discretion by declining to fur-
ther consider the disputed evidence in imposing sentence.
2. History and Characteristics of the Defendant
[6] The government next contends that the district court
misjudged “the history and characteristics of the defendant,”
18 U.S.C. § 3553(a)(1), in determining the sentence. The gov-
ernment specifically alleges it was error to consider Autery’s
lack of a criminal history, because that characteristic is
already part of the Guidelines criminal history calculation.
This argument overlooks the fact that a defendant with a
minor criminal history can still fall within Criminal History
Level I. See U.S. Sentencing Guidelines Manual § 4A1.1 &
Ch. 5, Pt. A (2007). Therefore, because Autery’s Criminal
History Level I did not fully account for his complete lack of
criminal history, considering it as a mitigating factor was not
redundant or improper. See United States v. Rowan, 530 F.3d
379, 381 (5th Cir. 2008) (holding probation reasonable for
defendant convicted of possessing hundreds of hardcore child
pornography images where defendant had no criminal his-
tory).
[7] The government also notes that Autery was a former
reserve police officer and claims this fact should have been
considered an aggravating factor, because Autery should have
known the law and its consequences. The notion that a defen-
dant’s status as a former law enforcement officer justifies a
per se sentence enhancement is dubious. Indeed, one could
reasonably argue that a defendant’s law enforcement service
could, in certain circumstances, constitute a mitigating factor
in sentencing because a former law enforcement officer has
shown at some point in his past that he can lead an honorable
and responsible life. Defense counsel frequently use similar
arguments before sentencing courts in order to highlight a
defendant’s best qualities. Because the issue can cut either
1798 UNITED STATES v. AUTERY
way, the district court’s failure to treat such service as an
aggravating factor was not an abuse of discretion.
[8] In addition, the government takes exception to the dis-
trict court’s commenting on Autery’s various positive charac-
teristics, such as his having no history of substance abuse, no
“interpersonal instability” nor “sociopathic or criminalistic
attitudes,” his motivation and intelligence, and that he has the
support of his wife and children. But the government offers
little support for why these attributes, which undoubtedly con-
stitute “history and characteristics of the defendant,” see 18
U.S.C. § 3553(a)(1), are inappropriate considerations. The
government cites United States v. Thompson, 315 F.3d 1071
(9th Cir. 2001), for the proposition that, in departing down-
ward, a district court should not rely on a defendant’s lack of
history of committing sexual abuse. To the extent Thompson’s
ratio decidendi survives Booker (which we do not here
decide), Thompson does not help the government. While the
district court mentioned that Autery had no history of com-
mitting sexual abuse, the court also relied on the various other
attributes listed above. Each of those attributes, in the reason-
able judgment of the court, increases the likelihood that
Autery can again become a productive, non-threatening mem-
ber of free society, thus making more severe punishment less
appropriate than if Autery lacked those characteristics.
[9] Our dissenting colleague objects to our reliance on the
district court’s characterization of Autery as not “fit[ting] the
profile of a pedophile.” He argues that the district court erred
in making this finding because neither the PSR nor the district
court itself described the elements of such a “profile” or why
it was relevant to sentencing. However, § 3553(a)(1) merely
directs the court to consider “the history and characteristics of
the defendant.” Nothing in this section requires the district
court to base its application of the factor on the PSR, scien-
tific studies, or anything other than the court’s experience and
judgment. See 18 U.S.C. § 3553(a)(1). The section also does
not require the district court to provide an elaborate founda-
UNITED STATES v. AUTERY 1799
tion for its determination. See id. Here, the district court
found, relying on its extensive experience and, in particular,
the experience of handling “hundreds and hundreds” of other
child pornography cases, that Autery did not “fit the profile
of a pedophile.” Under the district court’s reasoned judgment,
this “characteristic” of the defendant (like, inter alia, his lack
of “interpersonal instability” and his motivation and intelli-
gence) is unusual for someone in Autery’s position. Indeed,
the court found Autery “totally different than what . . . [the]
court has normally experienced with people who are ordering
this sort of child pornography.” Thus, the court impliedly
found that the other people he had sentenced for “ordering
this sort of pornography” posed a greater threat to society than
does Autery. As a result, this consideration is valid under
§ 3553(a)(1), and it was a reasonable basis for concluding that
Autery’s sentence should be lower than other defendants who
do fit that profile. Accordingly, we cannot say that the court’s
judgment on this issue was an abuse of discretion, and, while
it is clear that our dissenting colleague would have ruled oth-
erwise had he been sitting as the sentencing judge, we do not
believe he has shown that the district court here abused its
discretion on this factor either.
3. Seriousness of the Offense, Respect for the Law, and
Just Punishment
[10] The government next suggests that the sentence does
not, under 18 U.S.C. § 3553(a)(2)(A), adequately “reflect the
seriousness of the offense, . . . promote respect for the law,
[or] provide just punishment for the offense.” Reasonable
minds can differ as to whether a five-year probation provides
“just” punishment, but the district court clearly, and we
believe, reasonably, weighed this factor in imposing sentence.
First, the sentencing transcript reveals that the district court
was desirous of doing what was “just” in this case. Further-
more, in its “Statement of Reasons,” the court observed that
the statute provides for a term of probation of between one
and five years, and stated that it “impose[d] the maximum
1800 UNITED STATES v. AUTERY
term of probation because of the seriousness of the offense,
to promote respect for the law, [and] to provide just punish-
ment for the offense.” Finally, Autery’s sentence was not just
a term of probation: (i) Autery was required to register as a
sex offender, a punishment of lifelong significance (which
can cause the listed person to become so socially ostracized
that he has difficulty living in many communities); (ii) he is
barred from viewing any pornography whatsoever; (iii) he is
barred from being within 100 feet of places where minors
congregate unless approved by his probation officer; (iv) he
is not permitted to travel outside the State of Oregon without
prior approval; (v) he is required to participate in mental
health evaluation and counseling, including psychotherapy,
and to take any prescription drugs as directed; (vi) he is not
permitted to possess any firearm; (vii) he is barred from using
any computer except for work, or, without approval, any other
electronic media—such as a personal digital assistant or cellu-
lar phone—with Internet capability; and (viii) he is not per-
mitted to have “direct or indirect” contact with anyone under
the age of eighteen, except his own children. Although our
colleague may disagree with the district court’s decision on
this factor, none of the government’s arguments persuades us
that the way the district court considered the “seriousness of
the offense, respect for the law, and just punishment” was an
abuse of discretion.
4. Adequate Deterrence
The government also argues that the sentence in this case
does not reflect “the need for the sentence imposed . . . to
afford adequate deterrence to criminal conduct,” in accor-
dance with 18 U.S.C. § 3553(a)(2)(B). For the same reasons
that the sentence passes muster under 18 U.S.C.
§ 3553(a)(2)(A), the district court’s sentence is also not an
abuse of discretion under this provision. Moreover, as a fur-
ther deterrent, the district court threatened that if Autery vio-
lated any of the conditions of his probation, he would “be
back before me and receive the maximum penalty allowed by
UNITED STATES v. AUTERY 1801
law.” It is said that there is nothing like being sentenced to
hang in the morning to focus a man’s thoughts, and it is
improbable that the district court’s stern warning will be an
ineffective deterrent in this case.
5. Need to Protect the Public
[11] The government next contends that the sentence
imposed failed to “protect the public from further crimes of
the defendant,” pursuant to 18 U.S.C. § 3553(a)(2)(B). As the
district court stressed, however, Autery’s probation comes
with many strings attached, which are detailed in Section 3
(Seriousness of the Offense, Respect for the Law, and Just
Punishment), and the threat of maximum punishment if any
condition of probation is violated, detailed in Section 4 (Ade-
quate Deterrence). Moreover, as stated, Autery must register
as a sex offender, a designation that carries both societal
stigma and numerous practical restrictions designed to protect
children. Under the circumstances, it was not an abuse of dis-
cretion to conclude that—compared with a prison sentence of
forty-one to fifty-one months—a sixty-month probationary
period combined with all the referenced restrictions will ade-
quately protect the public.
6. Unwarranted Sentencing Disparities
The government also takes issue with the district court’s
alleged failure to impose a sentence reflecting “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). The record shows,
however, that the district court’s sentence depended heavily
on Autery’s dissimilarity with others convicted of the same
offense. According to the district court, Autery did not “fit the
profile of a pedophile.” He is in many ways, the court found,
qualitatively different from the “hundreds and hundreds” of
others the court had encountered who had engaged in similar
behavior. If this is true—and we have no basis reflected in the
1802 UNITED STATES v. AUTERY
record to conclude otherwise—then it was not an abuse of dis-
cretion to impose a sentence that is dissimilar from the sen-
tence that those other defendants received.
7. Prospect for Rehabilitation
[12] Finally, the government argues that the district court
erred when it improperly made rehabilitation one of the bases
for the probation sentence. Section 3553(a)(2)(D) speaks to
“the need for the sentence imposed . . . to provide the defen-
dant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective
manner.” The government argues that Autery could have been
ordered to undergo treatment in prison. The district court
could have handed down such an order, but what the court did
order was based on its knowledge of the case and what it
believed were Autery’s “exceptional” circumstances. Instead,
the district court commented that, in its judgement, incarcera-
tion would undermine Autery’s rehabilitation. Sentencing
Hr’g Tr. at 14 (court stating that incarceration would likely
create “a much more disruptive situation and, actually, could
be more damaging than the rehabilitation that [it] contem-
plate[d] will work”). As a result, the court ordered Autery to
undergo mental health counseling and to submit to any pre-
scription mediation or other treatment deemed appropriate.
Thus, rehabilitation was one of the factors most carefully con-
sidered by the district court in arriving at its sentence, and its
conclusion that Autery’s prospects for rehabilitation are
greater out of prison than in is not unreasonable.
The dissent argues that the district court failed to articulate
exactly why effective outpatient psychiatric treatment cannot
be provided in a federal prison. We believe this criticism is
misguided. First, the dissent seems to overlook the fact that
the sole objective of § 3553(a)(2)(D) is not punishment, but
the defendant’s rehabilitation. Cf. United States v. Tapia-
Romero, 523 F.3d 1125, 1126 (9th Cir. 2008) (noting that
when imposing sentence, district court must recognize that
UNITED STATES v. AUTERY 1803
“imprisonment is not an appropriate means of promoting cor-
rection and rehabilitation”) (quoting 18 U.S.C. § 3582(a)).
Second, the dissent points to no authority, nor to anything in
the record, that would undermine the district court’s conclu-
sion that professional, out-patient (non-institutional) psychiat-
ric treatment would be most effective at rehabilitating Autery.
Moreover, while the Guidelines in this case called for a
period of incarceration, the Guidelines are only one of several
factors the district court must consider. See Carty, 520 F.3d
at 991 (citing Kimbrough, 128 S. Ct. at 570). Here, the district
court determined that the Guidelines’ call for incarceration
was overcome by the various § 3553(a) factors—such as
§ 3553(a)(2)(D)—that, in the district court’s judgment, sug-
gested that probation with psychiatric treatment was a more
appropriate sentence. See Rowan, 530 F.3d at 381 (holding
that sentence of probation was reasonable for defendant con-
victed of possession of child pornography where defendant
had no criminal history, and district court believed he would
benefit from ongoing psychological treatment).
In sum, the district court—based on its unique familiarity
with the defendant, the case’s circumstances, and numerous
other cases like it—considered the required factors and
imposed a sentence that was not substantively unreasonable.
That sentence was not necessarily what this court would have
imposed. But under our controlling precedent, that determina-
tion alone is insufficient for reversal: “[w]e may not reverse
just because we think a different sentence is appropriate.”
Carty, 520 F.3d at 993.
Our dissenting colleague believes that our review is overly
deferential to the district court and that we are affirming sim-
ply because we find no procedural error.8 Dis. Op. at 1810
8
The dissent refers to Autery as a “child pornographer.” This term is
misleading, as a “pornographer” is defined as “one that produces pornog-
raphy.” Webster’s Third New International Dictionary 1767 (2002)
(emphasis added). Without minimizing the seriousness of child pornogra-
phy possession, we note that Autery was not charged with or convicted of
producing pornography.
1804 UNITED STATES v. AUTERY
(“[R]eview for abuse of discretion should be more than sim-
ply policing the district courts for proper procedure.”). We
respectfully disagree. Under Gall and Carty, we must con-
sider both the procedural and substantive reasonableness of
the sentence. Gall, 128 S. Ct. at 597; Carty, 520 F.3d at 993.
In this opinion, we have carefully reviewed each criterion
used by the district court in making its sentencing decision,
compared those criteria against the record and the require-
ments of governing law requiring “sufficient justifications”
for the sentence, Carty, 520 F.3d at 992 (quoting Gall, 128
S. Ct. at 594), and we have found no abuse of discretion.
In contrast, although our colleague cites with disapproval
the reasoning the district court used in making some of its
sentencing decisions (to which we respond in each instance
with citations from the record showing that the district court
did properly address the issue in question), he seems mostly
to figuratively curse the opacity of the guidance we have
received from above. We readily concede that in this post-
Booker era lower courts may occasionally feel a little like
Hansel and Gretel, looking for the now-missing breadcrumbs
that would lead us back to clarity in sentencing. However, it
is clear that in determining the substantive reasonableness of
a sentence, we are to “consider the totality of the circum-
stances” id. at 993, and that we are to give “due deference to
the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance” because the sentenc-
ing judge “is in a superior position to find facts and judge
their import under § 3553(a) in the individual case. The judge
sees and hears the evidence, makes credibility determinations,
has full knowledge of the facts and gains insights not con-
veyed by the record.” See Gall, 128 S. Ct. at 594. This we
have done. The Supreme Court’s instructions about the defer-
ence due to the district court because of its unique perspective
is even more compelling in a highly unusual case, which the
district court found this case to be, stating that it was “excep-
tional” and unlike the “hundreds and hundreds” of others that
had come before it. Accordingly, we affirm.
UNITED STATES v. AUTERY 1805
CONCLUSION
We hold that abuse of discretion is the proper standard of
review where a party challenges a sentence’s substantive rea-
sonableness on appeal but did not object to the sentence’s rea-
sonableness before the district court. We further hold that the
district court did not abuse that discretion in sentencing
Autery to five years probation with conditions.
AFFIRMED.
TASHIMA, Circuit Judge, dissenting:
Defendant Autery pled guilty to one count of possession of
child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B)
pursuant to a plea agreement. In the plea agreement, the par-
ties agreed to a presumptive sentence of 41-51 months’
imprisonment, which was the applicable range under the U.S.
Sentencing Guidelines. Notwithstanding that agreement, the
district court departed downward at least 14 levels and
imposed a sentence of five years’ probation. The government
appeals. Because I agree with the government that the sen-
tence is unreasonable under 18 U.S.C. § 3553(a), I respect-
fully dissent.1
When the Supreme Court in Gall v. United States, 128
S. Ct. 586 (2007), held that departures from the Sentencing
Guidelines could be reviewed only for abuse of discretion, the
Court did not intend to insulate district judges from “mean-
ingful appellate review” of the sentences they impose. Id. at
1
I agree with the majority on the applicable standard of review — that
the substantive reasonableness of sentences should be reviewed for abuse
of discretion rather than clear error, even when the appellant fails to object
to the reasonableness of the sentence. I therefore concur in that portion of
the majority opinion.
1806 UNITED STATES v. AUTERY
597. Yet the majority has interpreted Gall, along with United
States v. Carty, 520 F.3d 984 (9th Cir. 2008) (en banc), as
requiring appellate courts to adopt a posture so deferential
that, so long as the district court facially applies the relevant
18 U.S.C. § 3553(a) factors, a sentence can almost never be
reversed, no matter how substantively unreasonable it may be.
In this case, the district court sentenced a defendant, who
showed little indication of being anything other than a run-of-
the-mill child pornographer, to probation, rather than to the
41-51 months’ imprisonment that the Sentencing Guidelines
indicated and which the parties agreed was appropriate — a
departure of at least 14 levels. Because the district court’s rea-
soning in arriving at this sentence leaves me with a “definite
and firm conviction that the district court committed a clear
error of judgment,” United States v. Whitehead, 532 F.3d 991,
996 (9th Cir. 2008) (Bybee, J., dissenting), I believe that the
sentence was an abuse of discretion.
It is understandable that the majority would adopt a highly
deferential standard of reviewing the substantive reasonable-
ness of the district court’s decision, given that the Supreme
Court’s opinion in Gall focused primarily on what an appel-
late court may not do. It may not overturn an out-of-
Guidelines sentence merely because it “might reasonably
have concluded that a different sentence was appropriate.”
128 S. Ct. at 597. Nor may it require district courts to follow
rigid mathematical formulas or demonstrate that extraordinary
circumstances exist in order to justify a sentence outside the
Guidelines. Id. at 595. Missing from the majority opinion in
Gall, however, is any discussion of the circumstances under
which a court of appeals may reverse a district court’s sen-
tence as substantively unreasonable. It is possible to read Gall
as limiting the role of the court of appeals to ensuring that dis-
trict courts follow the proper procedures in determining sen-
tences, and that appears to be the trend of our case law. So
long as the district court does not commit any procedural
errors, the court of appeals should almost always defer to the
UNITED STATES v. AUTERY 1807
district court’s familiarity with the case and greater experi-
ence in sentencing. See Whitehead, 532 F.3d at 993.
I do not believe, however, that the Court in Gall intended
to require such extreme deference from courts of appeals. The
Court explicitly stated that “the familiar abuse-of-discretion
standard of review now applies to appellate review of sen-
tencing decisions.” Gall, 128 S. Ct. at 594. As Justice Alito
noted in his dissent in Gall, “Appellate review for abuse of
discretion is not an empty formality. A decision calling for the
exercise of judicial discretion ‘hardly means that it is unfet-
tered by meaningful standards or shielded from thorough
appellate review.’ ” Id. at 607 (Alito, J., dissenting) (quoting
Albemarle Paper Co. v. Moody, 422 U.S. 405, 416 (1975)).
The key to a correct interpretation of Gall is to apply
abuse-of-discretion review meaningfully without lapsing into
the rigid formulas condemned in Gall. In two recent dissents,
judges of this court have suggested that we apply a standard
that has often been used in other abuse-of-discretion contexts;
they would reverse a sentence where “ ‘we have a definite and
firm conviction that the district court committed a clear error
of judgment’ in imposing a particular sentence.” United States
v. Ruff, 535 F.3d 999, 1005 (9th Cir. 2008) (Gould., J., dis-
senting) (quoting SEC v. Coldicutt, 258 F.3d 939, 941 (9th
Cir. 2001); accord Whitehead, 532 F.3d at 996 (Bybee, J., dis-
senting). The Eleventh Circuit has adopted this standard in
reviewing sentences for substantive reasonableness. See, e.g.,
United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).
The “definite and firm conviction” standard distinguishes an
abuse of discretion from a mere difference of opinion. Abuse
of discretion as now applied in this circuit to the substantive
review of sentences for reasonableness is nothing more than
a standardless and empty formalism — it comes close to no
appellate review at all.
Applying the correct standard, I conclude that the district
court abused its discretion by sentencing Autery to probation.
1808 UNITED STATES v. AUTERY
The factors cited by the district court do not support its con-
clusion that Autery was uniquely situated for someone con-
victed of his offense.2 It is true that he had apparently begun
seeking child pornography relatively recently before his
arrest, and there is no evidence that he ever attempted to
molest a child. But both of those factors have already been
taken into account in calculating the appropriate offense level
under the Guidelines. His lack of criminal history placed him
in Category I, rather than a higher category. Likewise, if he
had had sexual contact with a minor, his base offense level
would have been increased beyond level 22. Nor is there any-
thing about the other circumstances related to Autery’s crime
that makes him appear significantly less culpable than a typi-
cal child pornographer.
The district court found that Autery did not possess child
pornography featuring depictions of actual minors. This find-
ing, however, does not withstand scrutiny. First, Autery cer-
tainly attempted to purchase child pornography featuring
depictions of actual minors. He solicited a person he believed
to be a mother of two young girls to produce sexually explicit
videos featuring her children.3 Fortunately, the woman was an
undercover agent, and no children were sexually abused for
Autery’s gratification. Moreover, Autery pled guilty to Count
3 of the indictment, which charged that “defendant herein did
knowingly possess images containing child pornography . . .
which contained visual depictions of actual minors engaged
in sexually explicit conduct . . . .” (Emphasis added.) This
finding is clearly erroneous and cannot supply any basis for
the reasonableness of the sentence.
2
I do not mean to suggest that a defendant must be unique or extraordi-
nary in order to merit a below-Guidelines sentence. I refer to uniqueness
here because the district court justified its sentence on the basis that
Autery was unique for a child pornographer.
3
Although the majority takes issue with my characterization of Autery
as a “child pornographer,” Maj. op. at 1803 n.8, it is a fair characterization
of one who solicits the production of made-to-order child pornography.
UNITED STATES v. AUTERY 1809
The district court made other puzzling findings which find
no support in the record. It found that Autery did “not fit the
profile of a pedophile.” But nothing in the record — including
the presentence investigation report4 — tells us what the “pro-
file” that the district court relied on is, or why it was relevant
to sentencing. After all, Autery was convicted of possession
of child pornography, a crime which does not include as an
element that the offender “fit the profile of a pedophile.”5 Yet,
the district court seemed to believe that a child pornographer
who did not “fit the profile of a pedophile” was undeserving
of a prison sentence.
The district court also found that “Defendant needs outpa-
tient psychiatric monitoring and management, and cannot be
accommodated adequately in a federal institution . . . .” This
finding is either startlingly blunt or clearly erroneous. First, it
is unexplained, except that the court concluded that Autery
needed “outpatient psychiatric monitoring and management.”
But why such outpatient treatment cannot be provided within
the federal prison system is unarticulated. Viewed from a cer-
tain perspective, it may be true that, as the district court
found, Autery “cannot be accommodated adequately in a fed-
eral institution.” But if it is true of Autery’s circumstance,
then surely it is equally true for thousands of other federal
prisoners. We are, indeed, starting down a slippery slope
when we accept the inadequacy of the federal prison system
as justifying the reasonableness of a downward departure that
results in no prison time for an offense which would merit a
prison sentence of three and a half years under the Guidelines.
These “findings” also do not support the reasonableness of
Autery’s sentence.
4
The Probation Officer could not identify any factor that would warrant
departure from the advisory Guidelines range.
5
Presumably, if Autery “fit the profile of a pedophile,” it would be
reflected either in his criminal history or his relevant conduct under
U.S.S.G. § 1B1.3, which would increase his offense level.
1810 UNITED STATES v. AUTERY
The majority does not seriously attempt to justify the dis-
trict court’s reasoning. The majority correctly points out that
it was not entirely redundant for the district court to reduce
the defendant’s sentence for his lack of a criminal history
when that was already taken into account in his criminal his-
tory Category I. A Category I offender may have a limited
prior history, rather than no history at all. Maj. Op. at 1797.
But the majority does not explain how this relatively minor
distinction could reasonably be relied on as a meaningful dif-
ference in arriving at a 14 level departure. Neither does the
majority explain how the district court could have been cor-
rect that a sentence of probation for solicitation of child por-
nography provides just punishment or reflects the seriousness
of the offense. The most the majority can say on this point is
that “reasonable minds can differ.” Maj. Op. at 1799. And the
majority accepts that it is beyond the role of this court to
question the district court’s conclusion that the defendant was
qualitatively different from other offenders, no matter how
flimsy the evidence or the district court’s reasoning were.
Thus, the majority believes it has no basis to question the dis-
trict court’s belief that Autery’s extremely low sentence does
not represent an unwarranted sentencing disparity between
Autery and other similar offenders. Maj. Op. at 1801-02.
While the district court followed the proper procedures and
explained its reasoning for departing downward from the
Guidelines, review for abuse of discretion should be more
than simply policing the district courts for proper procedure.
In this case, the sentence cannot withstand such review. The
court in Gall clearly suggested that a more serious level of
review was required, even as it rejected the use of strict math-
ematical proportionality: “In reviewing the reasonableness of
a sentence outside the Guidelines range, appellate courts may
. . . take the degree of variance into account and consider the
extent of a deviation from the Guidelines.” 128 S. Ct. at 595;
accord Carty, 520 F.3d at 993. The district court’s justifica-
tions in this case may not be entirely implausible, but neither
are they at all convincing in explaining such a radical depar-
UNITED STATES v. AUTERY 1811
ture from the Guidelines. The district court did not merely
assign a sentence from a range of reasonable choices, it devi-
ated below any range of reasonableness and, in doing so, seri-
ously erred.
The ordinariness of Autery as a defendant, and the inappro-
priateness of the district court’s imposition of a probationary
sentence, is particularly pronounced in comparison with the
circumstances of the defendant in Gall. Brian Gall partici-
pated in a conspiracy to sell ecstasy while attending college
in Iowa. 128 S. Ct. at 591-92. He voluntarily withdrew from
the conspiracy after seven months and moved to Arizona,
where he lived as a law-abiding citizen. Id. at 592. When his
role in the drug ring was discovered by law enforcement, he
confessed his involvement and cooperated fully with the
authorities. Id. While he was in Iowa on bail during the time
his case was pending, he started his own construction busi-
ness. Id. Reasonable minds might differ as to the proper sen-
tence for Gall, but he provided strong evidence that he had
self-rehabilitated and was no longer a threat to commit more
crimes. There were clear reasons to support the district court’s
decision that Gall differed from other defendants convicted of
similar crimes and that probation was more appropriate than
a within-Guidelines sentence of 30-37 months.
Here, the district court followed the proper procedures, but
the sentence it reached, unlike in Gall, is simply not supported
by the record. A meaningful abuse-of-discretion review can
overturn a sentence in a case like this and maintain some
sense of uniformity in sentencing while still allowing district
courts to sentence defendants such as Gall to sentences sub-
stantially lower than suggested by the Guidelines.
Because I am firmly convinced that the district court com-
mitted a clear error in judgment in sentencing Autery, I would
vacate the sentence as unreasonable and remand the case to
the district court for resentencing.