View PDF Version

No. 06-5618

In the Supreme Court of the United States

MARIO CLAIBORNE, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

PAUL D. CLEMENT
Solicitor General
Counsel of Record

ALICE S. FISHER
Assistant Attorney General

MICHAEL R. DREEBEN
Deputy Solicitor General

DAN HIMMELFARB
MATTHEW D. ROBERTS
Assistants to the Solicitor
General

NINA GOODMAN
JEFFREY P. SINGDAHLSEN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Was the district court's choice of below-Guidelines sentence reasonable?

2. In making that determination, is it consistent with United States v. Booker, 543 U.S. 220 (2005), to require that a sentence which constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances?

No. 06-5618

MARIO CLAIBORNE, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (J.A. 88-91) is reported at 439 F.3d 479.

JURISDICTION

The judgment of the court of appeals was entered on Feb ruary 27, 2006. A petition for rehearing was denied on April 27, 2006 (J.A. 93). The petition for a writ of certiorari was filed on July 26, 2006, and was granted on November 3, 2006, limited to the questions specified by the Court. The jurisdic tion of this Court rests on 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The relevant constitutional and statutory provisions are reprinted in an appendix to this brief. App., infra, 1a-30a.

STATEMENT

Following a guilty plea in the United States District Court for the Eastern District of Missouri, petitioner was convicted of distributing cocaine base, in violation of 21 U.S.C. 841(a)(1), and possessing more than five grams of cocaine base, in viola tion of 21 U.S.C. 844(a). He was sentenced to 15 months of imprisonment, to be followed by three years of supervised release. The court of appeals vacated the sentence and re- manded for resentencing.

1. On May 14, 2003, police detectives patrolling an area in St. Louis, Missouri, observed drug trafficking and decided to make a controlled purchase. An undercover detective drove past petitioner, who was standing on the sidewalk, and petitioner flagged him down. The detective stopped the car and told petitioner that he wanted $20 worth of crack cocaine. Petitioner got in the car and handed the detective a plastic bag containing what appeared to be crack. In return, the detective gave petitioner a marked $20 bill. When petitioner left the car, the police arrested him and seized the marked bill from his pocket. A laboratory analysis revealed that the sub stance in the plastic bag was .23 grams of cocaine base. Peti tioner later admitted that he had been in the area to sell crack almost every night for about two and a half months before his arrest. J.A. 14, 50, 88-89; Sealed J.A. 4.

Petitioner was charged with a state drug offense and re ferred to a drug-court program, in connection with a deferred prosecution. On November 2, 2003, while subject to the diver sion program, petitioner was arrested again. Police officers responded to complaints of drug sales at a house at 3455 Ore gon. When they arrived, they saw petitioner and another person engaged in what appeared to be a drug transaction on the front porch of the house. When petitioner and the other man saw the officers, petitioner threw down a plastic bag con taining what appeared to be crack cocaine, entered the house with the other man, and locked the door. The two men then left the house through the rear. Petitioner ran back toward the front and entered a nearby house without the permission of the occupants, Mary Clemons and her daughter and grand children. Petitioner then ran out the back of that house and escaped. A short time later, the officers arrested petitioner at his own house, a few blocks away. A laboratory analysis of the substance petitioner had discarded revealed that it was 5.03 grams of cocaine base. J.A. 14-15, 50-51, 55-58, 89; Sealed J.A. 4-6.

Petitioner was charged in a superseding indictment with distributing cocaine base in May 2003 and possessing more than five grams of cocaine base in November 2003. He pleaded guilty to both charges. J.A. 1-2, 7-16; Sealed J.A. 3.

2. After the guilty plea but before sentencing, see J.A. 1- 3, this Court decided United States v. Booker, 543 U.S. 220 (2005). Booker held that the Sixth Amendment right to a jury trial is violated when a defendant's sentence is increased based on judicial factfinding under mandatory federal Sen tencing Guidelines. Id. at 226-244. As a remedy for that con stitutional violation (id. at 244-268), the Court severed two provisions of the Sentencing Reform Act of 1984 (SRA), 18 U.S.C. 3551 et seq. The first was 18 U.S.C. 3553(b)(1) (Supp. IV 2004), which had required courts to impose a Guidelines sentence. "So modified, the [SRA] makes the Guidelines ef fectively advisory. It requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sen tence in light of other statutory concerns as well." 543 U.S. at 245-246 (citations omitted). The Court also severed an appellate-review provision, 18 U.S.C. 3742(e) (2000 & Supp. IV 2004), which had served to reinforce the mandatory nature of the Guidelines. The Court replaced that provision with a general standard of review for "unreasonableness," under which courts of appeals determine "whether the sentence 'is unreasonable' with regard to [18 U.S.C.] § 3553(a)." 543 U.S. at 261.

3. a. Petitioner faced a statutory sentence of up to 20 years of imprisonment on each count. J.A. 11. In calculating petitioner's offense level, the Presentence Investigation Re port (PSR) began with a base offense level of 26 under the drug-trafficking Guideline, Section 2D1.1(a)(3) and (c)(7), because the amount of crack exceeded five grams; added two levels under Section 3C1.2 because petitioner recklessly cre ated a substantial risk of death or serious bodily injury when he fled into the Clemons home; and subtracted three levels for acceptance of responsibility under Section 3E1.1. That calcu lation resulted in a total offense level of 25, which, when com bined with a criminal history category of I, yielded a Sentenc ing Guidelines range of 57 to 71 months of imprisonment. Because the offense involved more than five grams of cocaine base, however, petitioner was subject to a statutory minimum prison term of five years under 21 U.S.C. 844(a). Under Sen tencing Guidelines § 5G1.1(c)(2), the advisory range was therefore 60 to 71 months. Sealed J.A. 5-6, 9.

Petitioner objected to the PSR, claiming that an enhance ment for reckless endangerment was unwarranted. He also claimed that he satisfied the "safety valve" criteria of 18 U.S.C. 3553(f) and Sentencing Guidelines § 5C1.2. The dis trict court sustained the objections, thus lowering the advi sory range and eliminating the statutory mandatory mini mum. As a consequence of those rulings, petitioner's offense level was 21, and his Guidelines range was 37 to 46 months. J.A. 24-30, 53-63, 69; Sealed J.A. 15.

b. Petitioner urged the district court to impose a sentence below the advisory Guidelines range. He argued that a lower sentence was warranted because of the relatively small amount of drugs seized from him; his status as a street-level dealer; the fact that he had not engaged in any dangerous or aggravating conduct; the disparity between crack-cocaine and powder-cocaine sentences; his family's reliance on him; his lack of criminal history and positive post-arrest conduct, which, he claimed, indicated that he was unlikely to commit crimes in the future; and his youth (he was born in December 1983). J.A. 19-23, 30-31, 63-67; Sealed J.A. 2.

In response, the government argued that the facts did not support petitioner's assertion that he was unlikely to commit additional crimes and that petitioner's commission of a second drug offense six months after his first arrest proved the con trary. In any event, the government pointed out, the "safety valve" had already substantially reduced petitioner's sentenc ing range based on his lack of criminal history and assumed lower likelihood of recidivism. The government also noted that petitioner's economic support for his family had, by his own admission, come in part from dealing drugs; that he had engaged in dangerous, aggravating conduct in invading the Clemons home; and that the difference in sentences between crack cocaine and powder cocaine reflected a permissible pol icy decision by Congress, the body with the authority to make such decisions. J.A. 34-35, 59-60, 67-69.

c. In announcing its sentence, the district court ex pressed concern that petitioner would commit additional drug offenses:

You pled guilty to * * * two separate sales. You were arrested after the first sale, but that didn't stop you. You went ahead and sold again.

* * * And I can't figure out if you were just unlucky or if you're stupid. I hope you are not stupid, because if you are, you're going to do this again. Selling drugs is not the way to support yourself [and] your family. * * *

* * * I hope you give some serious thought to that, because I am very concerned that, because you're so young, you don't fully realize the effect of what you've done has on your family and what it is going to have on you and your future.

J.A. 69-70. The court also expressed the view that petitioner's drug crimes were "very serious" and that his invasion of the Clemons' home was "unforgivable." J.A. 71-72.

The district court went on to explain, however, that it be lieved that a sentence of 37 months, the bottom of the Guide lines range, would be excessive:

I am concerned that the Sentencing Guidelines, while they take into account a lot of factors, in this situation, the 37-month low end of the range is, in my view, excessive in light of your criminal history which is zero and in light of the circumstances involved in this case. I don't want to minimize what you did, because what you did was very serious. You committed two serious felony crimes.

However, when I consider the quantity of drugs that are involved; the fact that you qualify for the safety valve; and your criminal history; and the likelihood of your com mitting further similar crimes in the future, I come to the conclusion that a 37-month sentence would be tantamount to throwing you away.

I don't think that's appropriate in your situation. And when I compare your situation to that of other individuals that I have seen in this court who have committed similar crimes but perhaps involving a larger-a much [sic] amount of drugs-and the sentence that they receive, I don't believe that 37 months is commensurate in any way with that.

As I said before, I do believe some term of imprison ment is appropriate in your case. And I hope that you don't view this as just the cost of doing business.

J.A. 71-72. The court then imposed a sentence of 15 months of imprisonment. J.A. 72, 78; Sealed J.A. 17.

4. The government appealed, contending that "the sen tence [w]as unreasonable under 18 U.S.C. § 3553(a)." J.A. 88. Agreeing with the government, the court of appeals vacated the sentence and remanded for resentencing. J.A. 88-91.

The court of appeals noted that, although the Sentencing Guidelines are no longer mandatory, district courts are still required to take them into account, together with the other sentencing factors in 18 U.S.C. 3553(a) (2000 & Supp. IV 2004). J.A. 89. The court explained that, when, as in this case, the district court has correctly calculated the advisory Guidelines range, the court of appeals will "review the result ing sentence for reasonableness, a standard akin to * * * traditional review for abuse of discretion." J.A. 90. "A 'range of reasonableness,'" the court stated, "is within the [district] court's discretion." Ibid. (citation omitted). The court ob served that a sentence within the advisory Guidelines range "is presumed reasonable," because the "Guidelines were fash ioned taking the other § 3553(a) factors into account and are the product of years of careful study." Ibid. The court added, however, that a sentence outside the advisory Guidelines range will also be found reasonable "so long as the judge of fers appropriate justification under the factors specified in 18 U.S.C. § 3553(a)," with a proportionately more compelling justification required as the extent of the variance from the Guidelines range increases. Ibid. (quoting United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005)). In particular, the court said, "[a]n extraordinary reduction must be supported by extraordinary circumstances." J.A. 91 (quoting United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005)).

Applying those principles, the court of appeals held that the sentence imposed in this case was unreasonable. J.A. 90- 91. The court explained that the 15-month sentence reflected a "sixty percent downward variance" from the bottom of the 37-to-46-month advisory Guidelines range, that 60% was "an extraordinary variance," and that it was "not supported by comparably extraordinary circumstances." Ibid. In finding a lack of extraordinary circumstances, the court explained that petitioner's lack of criminal history "was taken into ac count when the safety valve eliminated an otherwise applica ble mandatory minimum sentence"; that the small quantity of drugs "was taken into account in determining his guidelines range" and that it was a "fair inference" that he "distributed additional quantities of cocaine during the six months be tween the two occasions interdicted by the police"; and, fi nally, that petitioner "committed a second serious drug of fense six months after his first arrest," such that he "has not earned an extraordinary downward variance from a guidelines sentence that already reflects substantial leniency." J.A. 91.

SUMMARY OF ARGUMENT

I. A court of appeals conducting reasonableness review under United States v. Booker, 543 U.S. 220 (2005), should apply a principle of proportionality to assess whether a non- Guidelines sentence that varies significantly from the advi sory range is a reasonable sentence. Such a principle is es sential to fulfill Booker's expectation that appellate review would move sentences in Congress's preferred direction of greater uniformity.

The undisputed central purpose of the Sentencing Reform Act of 1984 (SRA) was to reduce unwarranted disparities in sentencing. Among the means for achieving that aim were creation of an expert agency to promulgate Sentencing Guide lines, a legislative definition of the purposes of sentencing, and appellate review to reduce disparate outcomes. Booker held that the mandatory character of the Sentencing Guide lines violated the Sixth Amendment. But the Court remedied that defect by severing the provisions mandating compliance with the Guidelines and leaving intact other critical features of the SRA that it believed would further Congress's "basic sentencing intent" of moving sentences towards greater uni formity. 543 U.S. at 264. One of those features was appellate review.

Proportionality review is a critical means of ensuring that appellate review succeeds in tending "to iron out sentencing differences." Booker, 543 U.S. at 263. Review for unreason ableness must be tied to objective, quantitative benchmarks or it cannot reduce unwarranted disparity. Courts of appeals cannot create national measures of generally fair and just sentences. And review of sentences ad hoc would defeat Con gress's basic purpose of tending to increase sentencing unifor mity. The Sentencing Guidelines provide the only nationally uniform, congressionally endorsed integration of the purposes of sentencing under the SRA.

Proportionality review, which requires a substantial justi fication for a substantial variance from the Guidelines norm, comports with the remedial decision in Booker, the remaining provisions of the SRA, and Congress's intent to reduce sen tencing disparity. Indeed, petitioner and his amici offer no alternative that would even roughly reduce disparity. To the contrary, petitioner's vision of reasonableness review would abdicate the appellate function and abandon any hope of avoiding the disparities that prompted the SRA.

Nothing in a proportionality approach contravenes the Sixth Amendment. The Court confirmed in Booker that a judge's selection of a sentence from within a defined range does not implicate the Sixth Amendment; the Sixth Amend ment is violated only when the judge is legally prohibited from increasing a sentence beyond a specified level absent the finding of a fact neither found by the jury nor admitted by the defendant. The proportionality principle does not require a factual finding to exceed a defined range. A judge may sen tence outside the Guidelines range based on the facts found by the jury alone and based on a virtually unlimited universe of facts. Proportionality review, of course, does limit the ex tent of such variances. But Booker's provision for reasonable ness review necessarily determined that the Sixth Amend ment permits an appellate court to reject a statutorily autho rized sentence where no persuasive justification supports it.

No other Sixth Amendment objection casts doubt on pro portionality review. Appellate insistence on a strong justifica tion for an usually harsh or lenient sentence does not rein state mandatory Guidelines. And the experience of courts of appeals provides no support for the view that a proportional ity principle deters district courts from exercising their dis cretion under Booker.

II. Petitioner's sentence violates the proportionality prin ciple, and is unreasonable, because the district court varied substantially from the advisory Guidelines range without pro viding a substantial justification. The district court imposed a sentence of 15 months of imprisonment, which is 22 months, and nearly 60%, below the advisory Guidelines range of 37 to 46 months. The first three stated justifications-petitioner's lack of a criminal record; the drug quantities involved; and his eligibility for the "safety valve"-are common features in a drug case and are, indeed, fully accounted for in calculating the Guidelines range. That does not prohibit the court from relying on those considerations, but it does mean that they cannot justify a substantial variance without inviting wide spread disparities. The district court did not find that the first three considerations made the case unusual in any way, and there is no basis in the record for any such finding. If anything, petitioner's offense level and criminal history cate gory understate his culpability: petitioner admitted that he sold crack nearly every day for approximately two and a half months before his first arrest, and he was arrested a second time less than six months later. Both facts point to an en hanced likelihood of recidivism, thus making the court's con trary view plainly unsound.

Nor can the last consideration-the assertion that the district court had imposed similar sentences on defendants who committed similar crimes-justify its substantial vari ance. Because the court did not identify the prior cases it had in mind, an appellate court cannot assess the accuracy of its assertion. Even if the assertion is credited, however, Con gress's goal was one of nationwide sentencing uniformity, not uniformity in a single court. The goal of nationwide unifor mity was undermined, not furthered, by the imposition of a sentence in this case far below the advisory Guidelines range.

ARGUMENT

I. APPELLATE REVIEW FOR REASONABLENESS SHOULD REQUIRE A STRONG JUSTIFICATION FOR A SENTENCE THAT SUBSTANTIALLY VARIES FROM THE ADVISORY GUIDELINES RANGE

In United States v. Booker, 543 U.S. 220 (2005), this Court preserved appellate review of sentences under the Sentencing Reform Act of 1984 (SRA or Act), 18 U.S.C. 3551 et seq., un der an implied standard of review for "reasonableness." Id. at 261-264. Although the Court did not "claim that the use of a 'reasonableness' standard will provide the uniformity that Congress originally sought to secure" in the SRA, the Court expressed confidence that such appellate review would "tend to iron out sentencing differences," id. at 264, and thus "move sentencing in Congress' preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary." Id. at 264-265 (citing 28 U.S.C. 991(b)). As a majority of the courts of appeals have held, courts reviewing sentences for unrea sonableness should apply a principle of proportionality to evaluate whether the sentences are justified based on the sentencing factors in 18 U.S.C. 3553(a) (2000 & Supp. IV 2004). When a sentence varies substantially from the advi sory Guidelines range, a strong justification should be re quired to establish that the sentence is a "reasonable" one.1

A principle that requires substantial variations to be justi fied by correspondingly strong reasons is essential if appel late review of sentences is to fulfill the function envisioned by this Court. As Booker recognized, effective appellate review is vital to advance Congress's basic goal of reducing unwar ranted sentencing disparity. The proportionality principle enables appellate review to work together with the advisory Guidelines to move sentencing towards Congress's "basic objectives" of "avoiding excessive sentencing disparities" with sufficient room for individualized punishment. Booker, 543 U.S. at 265. Nothing in the SRA or the Sixth Amendment is inconsistent with use of a proportionality principle to identify unreasonable sentences that vary significantly from the advi sory Guidelines.

A. The Primary Goal Of The Sentencing Reform Act Is To Reduce Unwarranted Disparities In Sentencing

1. For almost a century before the SRA's enactment in 1984, the federal system "employed * * * a system of inde terminate sentencing. Statutes specified the penalties for crimes but nearly always gave the sentencing judge wide dis cretion to decide whether the offender should be incarcerated and for how long." Mistretta v. United States, 488 U.S. 361, 363 (1989). Further, the district court's "determination as to what sentence was appropriate met with virtually uncondi tional deference on appeal." Id. at 364.

As a result of that broad discretion, "[s]erious disparities in sentences * * * were common." Mistretta, 488 U.S. at 365. Disparities occurred "between Federal courts in differ ent parts of the country, between adjoining districts, and even in the same districts." H.R. Rep. No. 85-1946, at 6 (1958). "[E]mpirical studies repeatedly showed that similarly situated offenders were sentenced [to], and did actually serve, widely disparate sentences." Ilene H. Nagel, Structuring Sentenc ing Discretion: The New Federal Sentencing Guidelines, 80 J. Crim. L. & Criminology 883, 883 (1990); see id. at 895-897; Michael S. Gelacak et al., Departures Under the Federal Sen tencing Guidelines: An Empirical and Jurisprudential Anal ysis, 81 Minn. L. Rev. 299, 306-307 (1996); United States Sen tencing Comm'n, Supplementary Report on the Initial Sen tencing Guidelines and Policy Statements 8 (1987) (Supple mentary Report). Even more troubling, sentencing disparity was often highly correlated with the defendants' race, gender, and class. See Nagel, 80 J. Crim. L. & Criminology at 883- 884, 895-896; Gelacak, 81 Minn. L. Rev. at 306-307.

As early as 1958, Congress recognized and attempted to address the problem of disparity with "the creation of judicial sentencing institutes and joint councils, see 28 U.S.C. § 334, to formulate standards and criteria for sentencing." Mistretta, 488 U.S. at 365. But, despite those and numerous other efforts, intolerable disparity continued. See id. at 365- 366; Supplementary Report 1-4. The underlying source of the problem-unguided and unreviewed judicial discretion in sentencing-remained. See S. Rep. No. 95-605, at 10, 881-883 (1977); S. Rep. No. 98-225, at 38, 41 (1983); Edward M. Ken nedy, Toward A New System of Criminal Sentencing: Law With Order, 16 Am. Crim. L. Rev. 353, 353-354 (1979); Gelacak, 81 Minn. L. Rev. at 307; Appellate Review of Sen tences, 32 F.R.D. 249, 270 (1962). Ultimately, Congress-as well as jurists, practitioners, and academics-recognized that the "shameful disparity in criminal sentences [was] a major flaw in the existing criminal justice system" that demanded fundamental reform. S. Rep. 98-225, at 65; see Supplemen tary Report 8 & n.53; e.g., The Twentieth Century Fund Task Force on Criminal Sentencing, Fair and Certain Punishment (1976); Marvin E. Frankel, Criminal Sentences: Law With out Order (1972). The call for reform culminated in the pas sage of the SRA in 1984. See Pub. L. No. 98-473, Tit. II, ch. II, 98 Stat. 1987.

2. As this Court emphasized repeatedly in Booker, Con gress's "basic goal" in enacting the SRA was to promote "in creased uniformity" in sentencing and to reduce the unwar ranted disparities that had plagued the prior discretionary sentencing regime. 543 U.S. at 253.2 Even the dissenters agreed that "[t]he elimination of sentencing disparity, which Congress determined was chiefly the result of a discretionary sentencing regime, was unquestionably Congress' principal aim." Id. at 292 (Stevens, J., dissenting). And legislators repeatedly stressed the disparity-avoidance goal in support ing the bills that led to the SRA. See, e.g., 121 Cong. Rec. 37,562 (1975) (statement of Sen. Kennedy in introducing legis lation that culminated in the enactment of the SRA); S. Rep. 95-605, at 10, 881-883 (describing legislation reported by Sen ate Judiciary Committee adopting sentencing reform pro posal); S. Rep. 98-225, at 37-38, 41-49, 51-53, 65 (Senate Judi ciary Committee Report describing bill that was ultimately enacted as the SRA).

The text of the Act embodies the disparity-avoidance goal in numerous provisions that are independent of the provision that made the Guidelines mandatory. The Act created the Sentencing Commission and required it to develop guidelines that "provide certainty and fairness in meeting the purposes of sentencing, [and] avoiding unwarranted sentencing dispari ties among defendants with similar records who have been found guilty of similar criminal conduct." 28 U.S.C. 991(b)(1)(B); see 28 U.S.C. 994(f). The Act also defined the purposes of sentencing that, "[f]or the first time, * * * will assure that the Federal criminal justice system will adhere to a consistent sentencing philosophy." S. Rep. 98-225, at 59; 18 U.S.C. 3553(a)(2). See also S. Rep. 98-225, at 38 (because pre- Guidelines sentencing was often based on an "outmoded reha bilitation model," and federal law failed to provide otherwise, "each judge [was] left to apply his own notions of the purposes of sentencing," with the "result [that], every day Federal judges mete[d] out an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances"). And appel late review of sentences was understood as a vital means of checking unwarranted disparity. See 18 U.S.C. 3742 (2000 & Supp. IV 2004); S. Rep. 98-225, at 65 ("a mechanism to appeal" out-of-Guidelines sentences was considered "essential" if "the reforms [were] to be effective in reducing unwarranted sen tencing disparity and achieving overall fairness"); id. at 151 (appeals by the government enable "the reviewing courts to correct the injustice arising from a sentence that was pa tently too lenient"; "This consideration has led most Western nations to consider review at the behest of either the defen dant or the public to be a fundamental precept of a rational sentencing system, and the Committee considered it to be a critical part of the foundation for the bill's sentencing struc ture.").

B. Booker Envisions That Appellate Review And Advisory Guidelines Will Work Together To Achieve The SRA's Goal Of Reducing Unwarranted Disparities

1. In Booker, this Court held that the Sixth Amendment is violated when a district court imposes a sentence under mandatory Guidelines based on judicial fact-finding that in creases the sentence beyond the maximum authorized by the facts reflected in the jury verdict or admitted by the defen dant. 543 U.S. at 232-235. The Court therefore concluded that the mandatory Guidelines system enacted by the SRA was not constitutionally permissible. Ibid.

But the Court made clear that both the Guidelines and appellate review still have important roles in furthering the Act's original goal of reducing unwarranted sentencing dis parities. The Court selected the appropriate remedy for the Sixth Amendment violation by determining which of the avail able options would be most consistent with Congress's pri mary goal in enacting the SRA-"a system that diminishes sentencing disparity." Booker, 543 U.S. at 250. First, the Court concluded that requiring the jury to determine the facts that increase a defendant's sentence in a mandatory Guide lines scheme would impermissibly frustrate Congress's objec tives, in particular its "basic goal in passing the Sentencing Act to move the sentencing system in the direction of in creased uniformity." Id. at 253. Next, the Court rejected a return to the pre-SRA fully discretionary sentencing regime, with no appellate review, because, as compared with the lim ited severance that the Court ordered, it would manifestly fail to achieve Congress's purposes. Id. at 264-265. The Court concluded that neither of those options would advance the SRA's "basic aim of ensuring similar sentences for those who have committed similar crimes in similar ways." Id. at 252; see id. at 246-258.

The Court held that a third option-severing the statutory provisions that made the Guidelines mandatory-would best advance Congress's basic goal in enacting the SRA. Booker, 543 U.S. at 264 ("the Act without its 'mandatory' provision and related language remains consistent with Congress' initial and basic sentencing intent"). The Court therefore "severe[d] and excise[d] two specific statutory provisions"-18 U.S.C. 3553(b)(1) (Supp. IV 2004), which required district judges to sentence within the Guidelines range absent an aggravating or mitigating circumstance not adequately taken into account by the Guidelines, and 18 U.S.C. 3742(e) (2000 & Supp. IV 2004), which set forth stringent standards of appellate review designed to reinforce the mandatory character of the Guide lines. 543 U.S. at 259. Although the Court recognized that a non-mandatory Guidelines system is "not the system Con gress enacted," the Court concluded that it is "consistent with Congress' initial and basic sentencing intent" of reducing sentencing disparity. Id. at 264.

2. In reaching that conclusion, the Court stressed that two "features of the remaining system" will together "con tinue to move sentencing in Congress' preferred direction." Booker, 543 U.S. at 264. The first feature is a continued im portant role for the Sentencing Guidelines. The Court noted that "the Sentencing Commission remains in place, writing Guidelines, collecting information about actual district court sentencing decisions, undertaking research, and revising the Guidelines accordingly." Ibid. The Court emphasized that, although the Guidelines will no longer be binding, district courts will be required to "consult those Guidelines and take them into account when sentencing." Ibid. A continuing role for the Guidelines will, the Court explained, help "avoid exces sive sentencing disparities while maintaining flexibility to individualize sentences where necessary," as Congress in tended when it enacted the SRA. Id. at 264-265.

The second feature on which the Court relied in conclud ing that the modified SRA will still advance Congress's origi nal goal is appellate review. Noting that the Act, as modified, continues to provide for appellate review of sentences, Booker, 543 U.S. at 260 (citing 18 U.S.C. 3742(a) and (b)), the Court inferred a standard to guide that review. The Court held that courts of appeals should review sentences to deter mine whether they are "unreasonable," considering the sen tencing factors in Section 3553(a) and "the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c)." Id. at 261 (quoting 18 U.S.C. 3742(e)(3)). The Court emphasized that unreasonableness review will play a central role in advancing Congress's original aim in enacting the SRA because it will "tend to iron out sentencing differences." Id. at 263. The alternative-district court sentencing without the limits im posed by effective appellate review-"would cut the statute loose from its moorings in congressional purpose." Id. at 262.

The Court also indicated that appellate review will rein force the role of the Guidelines in reducing disparity. Imme diately after noting that the district courts are still required to take the Guidelines into account, the Court reiterated that the courts of appeals will "review sentencing decisions for unreasonableness." Booker, 543 U.S. at 264. The Court thus indicated that appellate review will work in tandem with a continuing important role for the Guidelines to ensure that the SRA as modified still advances its basic purpose.3

C. Proportionality Review, Using The Guidelines As A Benchmark, Is Essential To Implement The Remedial Scheme Adopted in Booker

Booker's remedial holding necessarily contemplates appel late review based on proportionality principles as applied to sentences that vary considerably from the advisory Guidelines range. A court's imposition of a sentence within the properly calculated advisory Guidelines range provides objective assur ance that the sentence will likely accord with "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. 3553(a)(6). A court's imposition of a sen tence outside that range, however, must be subject to some substantive proportionality review in order for appellate re view to play the role that Booker envisioned of "iron[ing] out sentencing differences." Booker, 543 U.S. at 263.

1. Appellate review cannot limit unwarranted sentenc ing disparities unless it includes proportionality re view based on a quantitative benchmark

a. Review for reasonableness requires benchmarks to support a judgment whether a sentence is consistent with the Section 3553(a) factors as applied to a particular case. Unless appellate review includes a tool for assessing whether a par ticular sentence is proportionate to the degree of punishment that is warranted and whether other judges would typically impose such a sentence in comparable cases, it cannot succeed in reducing unwarranted sentencing disparity. This is partic ularly important for sentences that vary substantially from the norm based on facts that are plainly unexceptional. If typical defendants can always receive sentences from zero months to the maximum punishment allowable under the stat ute, without any means for correction on appellate review, then appellate review will fail to move sentencing in the direc tion of uniformity, as Booker envisioned. And, by the same token, appellate review will fail to promote differentiation of the punishment of those who truly warrant exceptionally le nient or severe sentences. See, e.g., United States v. Davis, 458 F.3d 491, 499 (6th Cir. 2006) ("most extreme variance" for defendant who does not deserve the most lenient punishment "leav[es] no room to make reasoned distinctions" between that defendant and other "more worthy defendants"), petition for cert. pending, No. 06-7784 (filed Nov. 13, 2006). As a re sult, unjustified and extreme sentencing disparities will evade reversal. To avoid that result, sentences that vary dramati cally from the baseline must be reserved for those cases that present comparably strong justifications: sentences at or near the top or bottom of the statutory range are unlikely to be reasonable unless those cases present either significantly egregious facts or significantly mitigating equities.

b. Appellate review must also include a proportionality inquiry if it is to advance the sentencing purposes set out in 18 U.S.C. 3553(a)(2). As Congress recognized when it enacted the SRA, a sentencing system cannot provide just punish ment, promote respect for the law, afford adequate deter rence or protect the public if it permits typical offenders to receive sentences equal to those received by the most aggra vated and dangerous offenders or the least culpable and threatening ones. See S. Rep. 98-225, at 38-39, 46, 75-76. Proportionality of the sentence to a defendant's actual con duct and particular circumstances is therefore inherent in the purposes of sentencing that Congress prescribed.

c. Courts of appeals cannot succeed in identifying typical cases and weeding out extreme sentences that lack justifica tion unless they have an objective, consistent, and quantita tive standard to use as a starting point. Absent such a bench mark, reviewing courts will be unable to compare the circum stances of different offenders and will be reduced to focusing only on the record in a particular case. But "[t]o construct a reasonable sentence starting from scratch in every case would defeat any chance at rough equality which remains a congres sional objective." United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc)), cert. denied, No. 06-5727 (Jan. 8, 2007).

2. The Sentencing Guidelines are the appropriate benchmark because they provide a concrete and gen erally accurate application of the factors in Section 3553(a)

a. The Sentencing Guidelines are the most suitable bench mark for proportionality review. The Guidelines provide con crete, quantitative applications of the factors in Section 3553(a) to various categories of federal offenses and offend ers. And a sentence within the Guidelines range will gener ally be a reasonable one based on the sentencing factors in 18 U.S.C. 3553(a) (2000 & Supp. IV 2004). As explained more fully in the government's brief in United States v. Rita, No. 06-5754 (Rita Br.), that is true for several related reasons.

First, the Guidelines integrate the congressional sentenc ing objectives in Section 3553(a). Congress required the Com mission, in formulating the Guidelines, to consider factors identical to the ones that Section 3553(a) requires a district court to consider when imposing a sentence. And, consistent with Congress's direction, the Commission's formulation of the Guidelines sought "to balance all the objectives of sentenc ing." Supplementary Report 16. See Rita Br. 17-18, 19-20.

Second, the Guidelines reflect the expert and reasoned judgment of the Sentencing Commission about how to weigh the Section 3553(a) factors for particular categories of offenses and offenders, taking into account "the aggregate sentencing experiences of individual judges" across the country. United States v. Buchanan, 449 F.3d 731, 736 (6th Cir. 2006) (Sutton, J., concurring), petition for cert. pending, No. 06-6155 (filed Aug. 23, 2006). The initial Guidelines were formulated based on a careful examination of a wide range of sentencing prac tices, coupled with congressional guidance on what sentences and considerations promote the SRA's objectives. Over the past two decades, the Commission has continued to collect information about actual sentencing determinations and appel late decisions reviewing those determinations, and has revised the Guidelines accordingly. See Rita Br. 22-23.

Third, Congress has played an active role in reviewing and shaping the Guidelines over the years. It provided detailed guidance on the contours of Guidelines when it enacted the SRA, and it has reviewed all of the Guidelines before they have taken effect. Congress has rejected some Guidelines, directed the Commission to modify others, and has even enacted Guide lines itself. See Rita Br. 18. Consequently, the Guidelines currently represent nearly two decades' worth of careful con sideration of the appropriate sentences for the various catego ries of federal offenses and offenders. See United States v. Mykytiuk, 415 F.3d 606, 607 (7th Cir. 2005).

The Guidelines are therefore the appropriate benchmark for proportionality review. A sentence that varies substan tially from the Guidelines' assessment of the appropriate sen tence should prompt an appellate court to seek a substantial justification. That approach permits the courts of appeals to operate from a consistent nationwide starting point so that a drug defendant does not receive inexplicably harsher or more lenient punishment in New York compared to a similarly situ ated defendant in St. Louis or San Francisco. And it provides the court of appeals with a detailed means of assessing whether the reasoning advanced by the district court for its sentence identifies important factors for a sentence far from the norm, or instead rests on only ordinary factors that the vast majority of judges would weigh differently. Such review permits appellate judges in different circuits to apply common standards and reach generally consistent outcomes.

b. Petitioner points out (Br. 24) that the Commission has acknowledged that the Guidelines cannot account for all the facts and circumstances that may be relevant in a particular case. Of course that is true. But it does not undercut the use fulness of the Guidelines as the benchmark for proportionality review. The proportionality principle recognizes that a Guide lines sentence is not the only reasonable one and that a sen tence outside the Guidelines range may be justifiable. See, e.g., United States v. Wadena, 470 F.3d 735, 739-740 (8th Cir. 2006) (applying proportionality principle and concluding that "substantial" downward variance was justified); United States v. Baker, 445 F.3d 987, 993 (7th Cir. 2006) (justification for downward variance "was sufficiently proportional to the dis trict court's deviation from the Guidelines"); United States v. Valtierra-Rojas, 468 F.3d 1235, 1240-1243 (10th Cir. 2006) ("substantial" divergence from Guidelines range was justified); United States v. Moreland, 437 F.3d 424, 435-437 (4th Cir. 2006) (some downward variance from Guidelines range was reasonable but extent of variance was not justified), cert. de nied, 126 S. Ct. 2054 (2006); United States v. Jordan, 435 F.3d 693, 697 (7th Cir.) ("quite compelling reasons" justified "sig nificant upward variance"), cert. denied, 126 S. Ct. 2050 (2006).

Proportionality review also does not displace the sentenc ing judge's on-the-scene appraisal of the defendant's crime and its circumstances. The discretion of the sentencing judge un der Booker means that the court is not bound by the Guide lines and that the courts of appeals will respect reasoned judg ment in the application of the Section 3553(a) factors. But a wide variance from the advisory Guidelines range raises the question whether the sentencing judge has reasonably applied those factors. The proportionality principle allows appellate courts to structure their review in a consistent and rational fashion, rather than leaving them to fashion a common law of sentencing review from whole cloth.4

3. There is no other appropriate benchmark for propor tionality review

No measure, other than the Guidelines, provides an appro priate benchmark for proportionality review. See Buchanan, 449 F.3d at 738 (Sutton, J., concurring) ("Where else, at any rate, would a court of appeals start in measuring the reason ableness of a sentence?"). In particular, neither the other sen tencing factors in Section 3553(a) nor the "parsimony provi sion" provides a consistent and quantitative standard for as sessing the reasonableness of a sentence.

The non-Guidelines factors in Section 3553(a) provide a frame of reference, but they are too qualitative and general to function as the exclusive benchmark for comparing sentences or identifying disparate applications of the factors. The sen tencing purposes in Section 3553(a)(2) provide only "broad, open-ended goals" that will be applied differently by different courts. Koon v. United States, 518 U.S. 81, 108 (1996); see United States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). The nature of the offense and characteristics of the defendant, 18 U.S.C. 3553(a)(1), and the "kinds of sentences available," 18 U.S.C. 3553(a)(3), are more concrete, but they cannot be trans lated into a particular sentence unless they are filtered through the broad, open-ended goals in Section 3553(a)(2). Thus, they ultimately provide no more concrete or consistent a benchmark than the purposes of sentencing themselves.

The mandate in 18 U.S.C. 3553(a)(6) "to avoid unwarranted sentencing disparity" likewise does not itself provide a stan dard by which to judge when unwarranted disparity exists. Nor can any district court singlehandedly reduce the kind of disparity that the SRA seeks to reduce. The SRA is in tended to reduce disparity nationwide. See United States v. Thurston, 456 F.3d 211, 216 (1st Cir. 2006), petition for cert. pending, No 06-378 (filed Sept. 14. 2006); United States v. Smith, 445 F.3d 1, 5 (1st Cir. 2006). Each district court sees only a limited portion of the sentences imposed even within its own circuit.5 Each court of appeals has a broader overview of sentences imposed by various courts, but it cannot consider cases nationwide or establish nationwide standards. The Sen tencing Commission, in contrast, has the institutional compe tence to consider sentencing practices on a national basis. The Commission is charged with collecting and analyzing nation wide sentencing data and revising the Guidelines as appropri ate. 28 U.S.C. 994(o) and (p): 28 U.S.C. 994(w) (Supp. III 2003); see Booker, 543 U.S. at 263-264; Braxton v. United States, 500 U.S. 344, 348 (1991). Indeed, the Commission took nationwide data into account in formulating the Guidelines. Supplementary Report 16. Treating the Guidelines as a benchmark-but not a mandate-therefore provides the only reliable mechanism to reduce disparity on a nationwide basis.

Nor does the "parsimony provision" provide an objective benchmark for proportionality review. 18 U.S.C. 3553(a) (2000 & Supp. IV 2004). That provision requires the sentencing court to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth" in Section 3553(a)(2). But it does not provide a concrete or objective measure of a sufficient sentence. Thus, the parsimony provi sion, like the other sentencing factors in Section 3553(a), pro vides no more practical a benchmark to assess an outlier sen tence than the highly general and potentially conflicting pur poses of punishment themselves.

Finally, although it might theoretically be possible for ap pellate courts to fashion a common law of sentencing review in which certain kinds of sentences for certain kinds of crimes would be deemed unreasonable, there is no conceivable reason to ignore the Guidelines. A common law system of review-if it were even feasible-would require tremendous resources and then suffer the same flaws petitioner and his amici attrib ute to the Guidelines. The Guidelines, moreover, benefit from the full attention of the Commission and the involvement of Congress. And, of course, the Court in Booker emphasized the continuing relevance of the Guidelines. Under the circum stances, it would be irrational to ignore the ready benchmark of the Guidelines in conducting the necessary proportionality review.

4. The proportionality principle is consistent with the appellate review contemplated by Booker

Petitioner contends (Br. 38-47) that the proportionality principle is inconsistent with the standard of appellate review contemplated by Booker. That is incorrect.

Under the standard used before 2003 to review departures from the Guidelines, a sentence was "reasonable" if "the rea sons given by the district court" were "sufficient to justify the magnitude of the departure." Williams v. United States, 503 U.S. 193, 204 (1992). Booker cited the pre-2003 standard of review in describing the "reasonableness" standard it adopted. 543 U.S. at 261. Proportionality review using the Guidelines as a benchmark is therefore fully consistent with the standard of review adopted in Booker.6

Petitioner incorrectly contends that the proportionality principle "inappropriately substitutes the appellate court's" judgment "for the district court's evaluation of section 3553(a)'s factors and purposes in particular cases." Pet. Br. 42. Contrary to that contention, the courts of appeals that apply the proportionality principle continue to defer to the district court's institutional advantage in making case-specific deter minations about the individuals and cases before it. The courts of appeals review district court findings of fact under the clear-error standard. See, e.g., United States v. Orozco- Vasquez, 469 F.3d 1101, 1107 (7th Cir. 2006). And the appel late courts understand unreasonableness review to be "defer ential," United States v. Rodriguez-Alvarez, 425 F.3d 1041, 1045 (7th Cir. 2005), petition for cert. pending, No. 05-8615 (filed Jan. 5, 2006), and akin to review for abuse of discretion. See, e.g., United States v. Spears, 469 F.3d 1166, 1170 (8th Cir. 2006) (en banc); United States v. Reinhart, 442 F.3d 857, 862 (5th Cir.), cert. denied, 127 S. Ct. 131 (2006).

Petitioner also argues that proportionality review "pro duces absurd results" because it requires a focus "on the arith metical degree of variation from the Guideline" range. Pet. Br. 39. Contrary to that contention, nothing about the proportion ality principle requires a single-minded focus on the percent age by which the sentence imposed deviates from the applica ble Guidelines range. Courts of appeals can and do apply the proportionality principle without turning "the reasonableness inquiry into a numbers game that relies only on a numerical or percentage line for reductions." United States v. Wallace, 458 F.3d 606, 613 (7th Cir. 2006). Instead, appellate courts should assess the extent of the variance from the Guidelines by con sidering all the relevant measures-percentage, absolute time, and any difference in the nature of the punishment (e.g., pro bation in lieu of imprisonment).7

5. Appellate review without a proportionality principle threatens to endorse the virtually unbounded district court discretion characteristic of the pre-SRA regime

Neither petitioner nor his amici offer any alternative form of appellate review that accords with the role envisioned by Booker. Petitioner, for his part, offers little explanation of how courts of appeals should review out-of-Guidelines sentences for unreasonableness. To the extent that petitioner says anything about how unreasonableness review should work, his com ments suggest that it should not include any substantive com ponent at all. Petitioner describes as a "false premise" the idea that "this Court intended 'reasonableness' review to limit the range of choice available to judges considering section 3553(a)." Pet. Br. 9. And he asserts that courts of appeals are prohibited from disagreeing with the "the weight sentencing judges gave to, or withheld from, particular factors." Id. at 33. See also id. at 11 (arguing that his sentence was reasonable because the district court "considered the relevant facts di rected by section 3553(a) and imposed a sentence that, in its view, was 'sufficient but not greater than necessary' to satisfy the statutory purposes of sentencing."). That is not appellate review but its abdication. The courts of appeals cannot effec tively carry out this Court's directive to "determin[e] whether [the] sentence 'is unreasonable, having regard for . . . the [Section 3553(a)] factors * * * and . . . the reasons for the imposition of the particular sentence, as stated by the district court," Booker, 543 U.S. at 261, without evaluating the weight that district courts have given the various Section 3553(a) fac tors. And appellate review cannot "iron out sentencing differ ences," id. at 263, if it imposes no limit on the range of sen tences that district courts may impose in a particular case.

Petitioner's amicus FAMM acknowledges (albeit grudg ingly) that unreasonableness review "is not without a substan tive component." FAMM Br. 27. But the substantive review proposed by FAMM will not be any more effective in reducing unwarranted sentencing disparity than petitioner's alternative of no substantive review at all. FAMM contends that a sen tence should be upheld unless it is "arbitrary and capricious and manifestly irrational" or it "runs afoul of the principle of parsimony," which, according to FAMM, requires the district court to impose "the least burdensome punishment" that satis fies the purposes of punishment set out in Section 3553(a)(2). Id. at 27-28. If FAMM's proposal provided any content for appellate review, it would provide only a one-way ratchet downward, and thus it could not guard against disparities that result from excessively lenient sentences. But FAMM's ap proach does not provide any meaningful content for review. In the first place, it relies on a misreading of the intent and force of the so-called parsimony provision. See Rita Br. 27-28. In any event, review for arbitrariness, capriciousness, and irratio nality cannot assure that sentences are reasonably proportion ate and not a source of unwarranted disparity unless the re viewing courts have a quantitative benchmark by which to compare sentences. And, as described above, neither the pur poses of punishment directly nor those purposes filtered through the parsimony principle provide such a benchmark. FAMM's proposal, like petitioner's, will thus result in the same kind of unchecked sentencing discretion that existed in the pre-Guidelines sentencing regime and that caused the "shame ful disparity in criminal sentences" that Congress sought to eliminate when it enacted the SRA. S. Rep. 98-225, at 65.

Indeed, Booker's remedy of advisory Guidelines with appel late review critically rested on the conclusion that those fea tures will "continue to move sentencing in Congress' preferred direction" of greater uniformity. 543 U.S. at 264. Rejection of a proportionality principle for appellate review would seriously undermine that conclusion. Not only would it significantly diminish the ability of appellate courts to "iron out sentencing differences," id. at 263, but it would also contradict the reme dial opinion's central premise.

D. Proportionality Review Is Consistent With The SRA As Modified By Booker

The proportionality principle best comports with the provi sions of the SRA left intact by Booker and promotes Con gress's underlying purpose. Indeed, the remaining portions of the SRA are, if anything, supportive of the adoption of propor tionality review.

1. Proportionality review is consistent with Section 3553(a)

Proportionality review, using the Guidelines as a bench mark, is consistent with the text of Section 3553(a). Nothing in Section 3553(a) precludes appellate courts from drawing on the Guidelines and notions of proportionality to structure the review of sentences. Although Section 3553(a) itself does not establish a hierarchy of factors, it enumerates the central prin ciple of the SRA-disparity avoidance-as a consideration in sentencing, 18 U.S.C. 3553(a)(6). Appellate courts can reason ably adopt a principle of proportionality as the means of imple menting that statutory consideration, since no other standard would serve that purpose. Moreover, Section 3553(a) requires consideration of the Guidelines, 18 U.S.C. 3553(a)(2), which is also consistent with the proportionality principle.

Petitioner contends (Br. 41-42) that Section 3553(a) simply lists seven factors and provides no priority for any of them; it follows, he asserts, that district courts enjoy almost plenary authority to decide how the statutory purposes apply to the facts of any particular case. But that suggestion overlooks that appellate review for reasonableness must mean more than simply a rough check that a district court has consulted the statutory factors. That approach would fail to move sentenc ing towards the uniformity that Congress desired-the very premise of upholding the severability remedy in Booker. 543 U.S. at 264.

2. Proportionality review is consistent with the parsi mony provision

Amicus NYCDL contends (Br. 9) that "[r]equiring any special showing or some form of 'extraordinary circumstances' to justify a sentence below the advisory guidelines * * * con flicts with the parsimony provision that Section 3353(a) sets forth as a district court's guiding directive." But a proportion ality principle reinforces the import of that provision. A sen tence must be "sufficient" to achieve the purposes of punish ment as well as not excessive. 18 U.S.C. 3553(a) (2000 & Supp. IV 2004). The provision thus posits that some sentences will fail to provide adequate punishment for particular offenders, while other sentences may be too great. Identifying the appro priate range of sentences that fit the purposes of punishment is inherently a task of proportioning the sentence to the crime and the offender. Moreover, like FAMM, NYCDL miscon strues the parsimony provision as a direction to be lenient, when, in fact, it directs that the sentence imposed be consis tent with, i.e., proportionate to, the general purposes of sen tencing in Section 3353(a)(2). See Rita Br. 27-28.

3. Proportionality review is supported by 18 U.S.C. 3553(c)

Proportionality review is also consistent with, and indeed supported by, the requirement that judges provide reasons for their sentences under 18 U.S.C. 3553(c) (2000 & Supp. IV 2004). Section 3553(c) requires district courts to state reasons supporting the sentences that they impose, and Section 3553(c)(2) requires a district court to provide more specific reasons for a sentence that is outside the Guidelines range. For a non-Guidelines sentence, the court must state "the spe cific reason for the imposition of a sentence different from" the Guidelines recommendation, and the reason must generally be "stated with specificity in the written order of judgment and commitment." 18 U.S.C. 3553(c)(2) (Supp. IV 2004). Notably, this Court did not excise that provision in Booker. See 543 U.S. at 260.

Section 3553(c)(2) is clearly directed towards facilitating appellate review. See S. Rep. 98-225, at 80 ("The statement of reasons will play an important role in the evaluation of the reasonableness of the sentence. In fact, if the sentencing judge fails to give specific reasons for a sentence outside the guidelines, the appellate court would be justified in returning the case to the sentencing judge for such a statement."). The requirement in Section 3553(c)(2) that the district court ex plain why the sentence is different from the advisory Guide lines sentence supports use of the Guidelines as the benchmark in judging the reasonableness of sentences that vary widely from the range. The Guidelines provide national standards that judges must "consult" and "take * * * into account when sentencing" (Booker, 543 U.S. at 264), and the requirement of reasons for non-Guidelines sentences logically supports an approach that treats substantial variances from the Guidelines as requiring correspondingly persuasive justifications. Section 3553(c)(2) thus provides practical and legal support for the proportionality principle.

E. Proportionality Review Is Consistent With The Sixth Amendment

1. The proportionality principle does not violate the Sixth Amendment because it does not require the sen tencing judge to find a fact to sentence outside the advisory Guidelines range

Although proportionality review asks for an especially strong justification for a sentence that varies widely from the advisory Guidelines range, it does not impose any limitation on the facts on which the sentencing judge may rely for that justi fication. In particular, the principle does not preclude the judge from justifying an out-of-Guidelines sentence based on facts already considered by the Guidelines, including the facts reflected in the jury verdict. Because the proportionality prin ciple does not require the judge to rely on facts other than those reflected in the jury verdict before imposing a sentence outside of the Guidelines range, the proportionality principle does not violate the Sixth Amendment.

a. As Booker reiterated, the Sixth Amendment is not impli cated when a judge exercises discretion "in imposing a sen tence within a statutory range." 543 U.S. at 233 (citing Apprendi v. New Jersey, 530 U.S. 466, 481 (2000), and Wil liams v. New York, 337 U.S. 241, 246 (1949)). "For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant." Ibid. The Sixth Amendment is violated, however, if a judge may lawfully sentence outside a specified sentencing range only if the judge finds a fact other than the "facts reflected in the jury verdict or admitted by the defendant." Blakely v. Washington, 542 U.S. 296, 303 (2004) (emphasis omitted).

Thus, a guidelines system presents a Sixth Amendment problem only when it mandates some range, lower than the maximum for an offense specified by statute, that the judge may not lawfully exceed without finding a fact in addition to the facts reflected in the jury verdict or admitted by the defen dant. The SRA as it existed before Booker presented that Sixth Amendment problem. A sentencing judge could not even calculate the appropriate Guidelines range based on only the facts found by the jury, and because the Guidelines were man datory, the judge could not deviate from the Guidelines range unless the judge found "an aggravating or mitigating circum stance of a kind, or to a degree, not adequately taken into con sideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. 3553(b)(1) (Supp. IV 2004). Making that determination necessarily involved finding a fact beyond those reflected in the jury verdict. The SRA's mandatory Guidelines system was therefore not consistent with the Sixth Amendment. See Booker, 543 U.S. at 234-235.

In order to render the SRA constitutional, Booker made the Guidelines non-mandatory by excising Section 3553(b)(1)'s limitation on the district court's authority to sentence outside the Guidelines range. 543 U.S. at 259. The proportionality principle does not reinstate that limitation; nor does it impose any other limitation on the facts on which a sentencing judge may rely to sentence outside the Guidelines range. As long as the judge provides a sufficiently persuasive justification, the judge may sentence all the way to the statutory maximum in the United States Code. And the judge may rely on any facts, including facts already reflected in the jury verdict, to justify that out-of-Guidelines sentence.

b. Of course, reasonableness review means that a sentence at the statutory maximum will not be available in every case. Indeed, a sentence at the statutory maximum may not be rea sonable in a significant number of cases. But that is not prob lematic. When Congress enacts a broad sentencing range, it necessarily contemplates punishment alternatives for the full spectrum of violators under the provision. A sentencing judge is expected, in his discretion, to reserve the harshest punish ment for the most culpable offenders, and the most lenient punishment for the least culpable. Imposition of the most se vere sentence on all defendants would conflict with the provi sion for a range.

Even before the SRA, while appellate courts did not review sentences for abuse of discretion, see Koon, 518 U.S. at 96, they did reverse maximum sentences when the sentencing judge failed to exercise discretion in light of the circumstances of the individual offender, but instead imposed sentence based solely on the offense of conviction.8 Those courts recognized that, when Congress establishes a punishment range, it in tends courts to take into account individualized circumstances rather than routinely to impose the maximum sentence.9 Nothing in that principle raised any Sixth Amendment con cern, and a proportionality principle that has the same conse quence is therefore equally consistent with the Sixth Amend ment. Such a consequence is, in fact, inherent in review for reasonableness.

2. The proportionality principle does not reinstate man datory Guidelines

Petitioner (Br. 34-37, 46-47), echoed by various amici (Sen tencing Project Br. 2, 5-6; WLF Br. 9; FAMM Br. 21-22), con tends that the proportionality principle violates the Sixth Amendment because it effectively reinstates a mandatory Guidelines system. That contention is incorrect.

As an initial matter, petitioner's argument is based on the mistaken premise that the proportionality principle "requir[es] extraordinary circumstances to sentence below the Guide lines." Pet. Br. 35; see id. at 34 (asserting that principle "[r]equir[es] 'extraordinary justification' as a threshold for non-Guidelines sentences" and "extraordinary justifications for downward 'variances'"). Contrary to that premise, no court of appeals has held that a district court must provide an "extraordinary justification" before it may sentence outside the Guidelines range. Indeed, the courts of appeals have re jected that proposition. See, e.g., United States v. Rivera, 448 F.3d 82, 85 (1st Cir. 2006) (a "party need not make an 'extraordi nary' showing in order to persuade the district court that a sentence below the [Guidelines range] is warranted").

Consequently, petitioner and his amici are incorrect in contending that the proportionality principle requires district courts "to select a Guidelines-range sentence in the vast ma jority of cases." Sentencing Project Br. 2. Nothing in the pro portionality principle presumes that a non-Guidelines sentence is unreasonable. Instead, the proportionality principle has its primary force when a court of appeals reviews a sentence sig nificantly outside the range. Because the principle addresses only the extent of variance that can be justified, it does not require district courts to impose a within-Guidelines sentence in any, let alone the vast majority of, cases. See, e.g., Valtierra-Rojas, 468 F.3d at 1238-1239 (10th Cir.) (citing cases from the Fourth, Sixth, Seventh, and Eighth Circuits-all of which have adopted the proportionality principle-holding that there is no presumption that a sentence outside the Guidelines range is unreasonable).

Petitioner incorrectly asserts that the proportionality prin ciple "does little more than echo the standards for downward departures" (Br. 34) and that "the prior departure standards may have allowed greater discretion" (Br. 35). The proportion ality principle bears no resemblance to the circumscribed de parture system under the mandatory Guidelines. Most funda mentally, as discussed above, the proportionality principle does not restrict out-of-Guidelines sentences to situations where the district court finds a fact or circumstance not ade quately taken into account by the Guidelines. Moreover, un like the departure provisions of the Guidelines, see Sentencing Guidelines §§ 5H1.1-7, 11-12, 5K2.0(d), 12-13, 19-20, the pro portionality principle does not prohibit or discourage sentenc ing outside the Guidelines range based on particular facts. On the contrary, the proportionality principle places no limit on the universe of facts that can justify an out-of-Guidelines sen tence.

3. The proportionality principle does not otherwise un constitutionally constrain district court sentencing discretion

Amicus NYCDL incorrectly contends that the proportion ality principle raises constitutional issues because it "strongly discourage[s] district courts from exercising the sentencing discretion that this Court deemed constitutionally essential in Booker." NYCDL Br. 4. The contention lacks support.

The percentage of out-of-Guidelines sentences has in creased significantly since Booker in virtually all circuits, in cluding all but one that have adopted the proportionality prin ciple. In the four fiscal years before this Court's decision in Blakely, available statistics indicate that district courts im posed out-of-Guidelines sentences on grounds other than government-sponsored departure in 9.4% of the cases.10 See App., infra, 32a. Between February 1, 2005 (a few weeks after Booker was decided), and September 30, 2006 (the latest date for which preliminary data have been released), district courts imposed such out-of-Guidelines sentences in 13.9% of the cases. Ibid. That represents a 48.4% increase in the rate of out-of-Guidelines sentences. Moreover, non-Guidelines sen tences have, on average, increased at a greater rate in the circuits that have adopted the proportionality principle than in the circuits that have not adopted the principle. Ibid. The rate of increase is 67.2% in proportionality circuits and only 29.6% in circuits that have not adopted the principle. Ibid. Thus, there is no basis to conclude that the proportionality principle discourages out-of-Guidelines sentences.

Petitioner (Br. 29) and NYCDL (Br. 3-8) also contend that the proportionality principle leads courts of appeals to invali date most below-Guidelines sentences and to affirm most above-Guidelines sentences. That claim has no logical basis because the proportionality principle applies equally to sen tences whether they are above or below the Guidelines range. See, e.g., Dean, 414 F.3d at 729 ("[T]he farther the judge's sentence departs from the guidelines sentence (in either di rection-that of greater severity, or that of greater lenity), the more compelling the justification based on factors in section 3553(a) that the judge must offer to enable the court of appeals to assess the reasonableness of the sentence imposed.").11

The difference in the rates of affirmance for below- and above-Guidelines sentences stems from other factors that sug gest no cause for concern. Upward variances are far rarer than downward ones. See United States Sentencing Comm'n, Final Report on the Impact of United States v. Booker on Federal Sentencing D-4 (2006); App., infra, 32a. And the gov ernment appeals a small percentage of sentences on the ground of unreasonableness, while criminal defendants appeal a high percentage (likely including nearly all upward vari ances). Both the FPCD and the NYCDL report more than 17 times as many defendant appeals as government appeals, see FPCD Br. App. A8; NYCDL Br. App. 2a-3a, 5a-6a, despite the fact that, since Booker, district courts have imposed below- Guidelines sentences more than seven times as often as above- Guidelines sentences, see App., infra, 32a. Indeed, FPCD figures show that defendants are nearly twice as likely to ap peal even when the district court imposes a sentence below the Guidelines range. FPCD Br. App. 8a (counting 148 defendant appeals and 83 government appeals from below-Guidelines sentences). See also United States v. McDonald, 461 F.3d 948, 956 n.7 (8th Cir. 2006). Given the government's greater selec tivity in appealing, it is unsurprising that appellate courts have reversed below-range sentences more frequently.

Finally, amicus NACDL contends that the proportionality standard violates the Sixth Amendment because, "[i]n the typi cal case-i.e., one where extraordinary mitigating circum stances are not present," the standard requires "a sentence greater than that authorized by the jury's findings." NACDL Br. 4. That argument depends on the mistaken premise that the maximum sentence "authorized by the jury's findings" is the top of the Guidelines range as calculated based on those findings. See id. at 8 (suggesting that the maximum sentence authorized by the jury's findings is "the top of the range deter mined solely on the basis of facts found by the jury or admitted by the defendant"). That premise would be correct only if a sentencing judge were prohibited from sentencing above that range unless the judge found a fact beyond the facts reflected in the jury verdict. See Blakely, 542 U.S. at 303 (defining stat utory maximum for Apprendi purposes). But Booker elimi nated that prohibition, and the proportionality principle does not reimpose it. Consequently, the maximum sentence "autho rized by the jury's findings" is not the top of the Guidelines range as calculated based on the facts found by the jury but the statutory maximum provided in the United States Code. Indeed, that conclusion follows from the advisory nature of the Guidelines after Booker, which makes reference to the Guide lines range as calculated based on the jury's findings unneces sary and artificial.

II. PETITIONER'S SENTENCE WAS UNREASONABLE

Petitioner's advisory Guidelines range was 37 to 46 months of imprisonment. J.A. 53-63, 69; Sealed J.A. 15. The district court imposed a sentence of 15 months. J.A. 72, 78; Sealed J.A. 17. The sentence was therefore 22 months, and nearly 60%, below the bottom of the Guidelines range. That was a substan tial variance, and thus, under the proportionality principle, it required a substantial justification. The justification provided by the district court does not satisfy that requirement. The 15-month sentence was therefore unreasonable.

A. The Circumstances On Which The District Court Relied Cannot Justify Such A Substantial Variance From The Guidelines Range

As justification for its sentence, the district court identified five considerations: (1) the fact that petitioner's criminal his tory "is zero," J.A. 71; accord J.A. 72; Sealed J.A. 17; (2) "the quantity of drugs involved," J.A. 72; accord Sealed J.A. 17; (3) the fact that petitioner "qualif[ies] for the safety valve," J.A. 72; (4) "the likelihood of [petitioner's] committing further similar crimes in the future," ibid.; and (5) a comparison of petitioner's "situation" to "that of other individuals that I have seen in this court who have committed similar crimes," ibid.; accord Sealed J.A. 17.

1. The first three considerations on which the district court relied are common features of drug cases that present no especially weighty grounds for a variance. Indeed, the Guide lines range was considerably reduced for those very factors.12 The fact that the Guidelines range reflected those factors does not bar a district court from relying on them in determining whether the factors in Section 3553(a) justified a below-Guide lines sentence. As a number of courts have recognized, how ever, it does mean that the circumstances can support a very substantial variance from the Guidelines range only if they substantially distinguish petitioner from the hundreds of other defendants who share the same general characteristics.13

The district court's explanation did not identify reasons why this case involved distinctive features that justified the variance. Indeed, insofar as petitioner's advisory Guidelines range was based on his lack of a criminal record and his re sponsibility for a little more than five grams of crack, the advi sory Guidelines range likely understated petitioner's culpabil ity. To establish eligibility for a sentence below the statutory minimum of five years, petitioner had to "truthfully provide[] to the Government all information and evidence [he] has con cerning the offense or offenses that were part of the same course of conduct." 18 U.S.C. 3553(f)(5). Petitioner made the following admission, through counsel, before sentencing:

[Petitioner] sold crack in the area of 37th and Itaska in the City of St. Louis for approximately two and a half months between either the end of February, 2003, or early March, 2003, until his May 14, 2003 arrest. He was there from about 9:00 p.m. to midnight or 1:00 a.m., almost every day. Often he was unable to sell anything because there were a large number of individuals selling in that area. * * * He obtained his crack from a man named Shawn * * * . Claiborne would call Shawn, who would deliver the crack to him. He could obtain five or six rocks from Shawn for $50.00. He would try to sell each rock for $20.00.

J.A. 50.

Petitioner's May 14, 2003, arrest, at the end of that approx imately two-and-a-half-month period, was for the sale of crack to an undercover detective in the same area. J.A. 14, 50, 88-89; Sealed J.A. 4. Petitioner was initially charged with a state drug offense and referred to a drug-court program, in connec tion with a deferred prosecution. Sealed J.A. 6. On November 2, 2003, while subject to the diversion program, petitioner was arrested again, in possession of more than 5 grams of crack. J.A. 14-15, 50-51, 89; Sealed J.A. 4-5. In federal court, peti tioner was charged with, and pleaded guilty to, only the May 14 and November 2 crimes, and he was held responsible at sentencing only for the crack that was seized from him on those two dates. J.A. 1-2, 7-9, 14-15; Sealed J.A. 3, 5.

The undisputed evidence thus demonstrates that petitioner sold crack continually for more than two months before his May 14 arrest and possessed a large quantity of crack less than six months after that arrest (and subsequent referral to the drug-court program). That evidence reflects that peti tioner can be considered a "first-time offender" only in a for mal sense (because he has no prior convictions) and that he is, as a practical matter, a repeat offender. The evidence also reflects that petitioner sold a far larger quantity of crack than that for which he was held responsible. As a consequence, insofar as there are any differences between petitioner and typical crack defendants with the same offense level and criminal-history score, the differences do not warrant a less severe sentence for petitioner; if anything, they warrant a more severe sentence. The district court's reliance on the drug quantity and criminal history score in varying downward very substantially from the Guidelines range was therefore plainly unjustified.14

For the same reasons, the fourth consideration on which the district court relied-"the likelihood of [petitioner's] com mitting further similar crimes in the future," J.A. 72-cannot justify a substantial variance from the advisory Guidelines range, as the court of appeals correctly held (J.A. 91). The district court believed that petitioner was sufficiently unlikely to return to selling crack that a 15-month prison term-an extremely lenient sentence for a crack offense-would consti tute adequate deterrence. But that belief cannot be reconciled with the undisputed fact that petitioner sold crack continually for more than two months until he was caught and placed in a diversion program, and then, less than six months later, "com mitted a second serious drug offense" while still subject to the program, J.A. 91. Plainly, petitioner's continued drug dealing even after being arrested and offered leniency in state court revealed that the need for a deterrent sentence was increased, not decreased.

2. The district court's fifth stated ground for the variance was that, "when I compare [petitioner's] situation to that of other individuals that I have seen in this court who have com mitted similar crimes * * * and the sentences they receive, I don't believe that 37 months is commensurate in any way with that." J.A. 72. But the court did not identify any of those "other individuals"; it did not describe the "similar crimes" they had committed; and it did not state what "sentences they [had] receive[d]." It is thus impossible for a reviewing court to make a reasoned assessment of whether similar sentences were justifiably imposed on similarly situated defendants.

More fundamentally, a national sentencing system does not contemplate that each district judge will create a personal set of guidelines and then seek to avoid disparities within the com paratively small set of cases that end up on that judge's docket. "Congress' primary goal in enacting § 3553(a)(6) was to promote national uniformity in sentencing," not uniformity in a particular case or within a particular court. United States v. Parker, 462 F.3d 273, 277 (3d Cir.) (emphasis added), cert. denied, 127 S. Ct. 462 (2006); see pp. 25-26, supra. The large majority of defendants throughout the country who are simi larly situated to petitioner will likely receive a sentence within or near the advisory Guidelines range of 37 to 46 months. Peti tioner's variance thus had the effect of increasing, not reduc ing, disparity in the sentencing of similarly situated defen dants across the country, based largely on the sentencing per ceptions of the individual judge.

B. No Other Circumstances In The Record Could Justify Such A Substantial Variance

1. In defending the 15-month sentence as reasonable, petitioner relies (Br. 16, 22) on the district court's statement that a sentence within the Guidelines range "would be tanta mount to throwing [him] away." J.A. 72. But that statement merely reflects the court's conclusion that a Guidelines sen tence would be too long; it does not provide any additional explanation of what facts and circumstances justify that con clusion. Indeed, in using the language on which petitioner relies, the court made clear that it was relying on the first four of the five considerations discussed above-i.e., petitioner's lack of criminal history, the quantity of drugs, petitioner's eligibility for the "safety valve," and the likelihood of recidi vism. See ibid. ("when I consider" those factors, "I come to the conclusion that a 37-month sentence would be tantamount to throwing you away").

Petitioner contends that the comments "reflect the district court's judgment that just punishment and the need to protect the public from future crimes meant, in [petitioner's] case, a sentence that punished without severing his family connec tions." Br. 16. On this view, the district court "did not wish to throw away [petitioner's] chance to be a father, to reintegrate with his family, and to resume his family responsibilities." Ibid. That contention is mistaken, because the district court never identified petitioner's family ties and responsibilities as a basis for the variance. See J.A. 71-72; Sealed J.A. 17. Inso far as the court mentioned petitioner's family, it was in the context of "lecturing" him (J.A. 71) that "[s]elling drugs is * * * not the way to support your family," that "[y]ou're not going to be able to support your family from prison," and that "you [might not] fully realize the effect of what you've done has on your family." J.A. 70. In any event, an effect on family ties is a common consequence of imprisonment. Nothing in the record indicates that petitioner's family ties and circumstances differ from those of a large percentage of defendants.

Petitioner also suggests that the variance was justified by his history of employment, including at the time of sentencing. Br. 14. What is true of petitioner's family ties and responsibili ties, however, is equally true of his employment record: the district court did not identify it as a ground for the variance (indeed, the court did not mention it at all), see J.A. 69-74; Sealed J.A. 17; and it is in any event a circumstance that is common to a large proportion of defendants.

Finally, petitioner notes that the district court "recognized [his] youth" when it imposed sentence. Br. 16. The court did not say, however, that petitioner's youth was a basis for a vari ance. See J.A. 71-72; Sealed J.A. 17. Indeed, far from having identified it as a mitigating factor, the court's comments about petitioner's youth were made in the context of expressing con cern that petitioner would commit additional crimes in the future. See J.A. 70 ("I am very concerned that, because you're so young, you don't fully realize the effect of what you've done has on your family and what it is going to have on you and your future."). That concern was certainly justified, because there is a strong correlation between youth and recidivism. See, e.g., United States Sentencing Comm'n, Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines 12, 28 (2004).

2. One of petitioner's amici suggests that a substantial variance was warranted because "Criminal History Category I overstates the criminal tendencies and likelihood of recidi vism for a true first-time offender like [petitioner]." NYCDL Br. 10. But because petitioner sold crack continually for more than two months before his first arrest and committed another crack offense less than six months afterwards, petitioner is not a "true" first-time offender. And although he may be a "first- time offender" in the sense that he has no prior convictions, the fact that he committed the second crime a few months af ter his arrest on the first crime, while participating in the drug court's diversion program, places him in the category of first offenders who are most likely to be recidivists. See United States Sentencing Comm'n, Recidivism and the "First Of fender" 14-16 (2004).

A number of petitioner's amici also suggest that the vari ance was warranted because of the disparity in Guidelines sentences for crack cocaine and powder cocaine. NYCDL Br. 10-11; Sentencing Project Br. 7-18. As one set of amici ac knowledges, however, "the district court did not base the sen tence it imposed on this disparity." Sentencing Project Br. 8. Consequently, the issue was not addressed by the court of appeals, and the question whether a court may base its sen tencing decision on a general disagreement with Congress's decision to impose harsher punishment for crimes involving crack than for those involving powder is not presented in this case. In any event, as the courts of appeals have uniformly concluded, such a categorical disagreement with the congres sionally prescribed crack-powder ratio is not a permissible basis for a variance.15

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

ALICE S. FISHER
Assistant Attorney General

MICHAEL R. DREEBEN
Deputy Solicitor General

DAN HIMMELFARB
MATTHEW D. ROBERTS
Assistants to the Solicitor
General

NINA GOODMAN
JEFFREY P. SINGDAHLSEN
Attorneys

JANUARY 2007

1 Eight courts of appeals have adopted the proportionality principle, and none has rejected it. See United States v. Smith, 445 F.3d 1, 4 (1st Cir. 2006); United States v. Moreland, 437 F.3d 424, 434 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006); United States v. Armendariz, 451 F.3d 352, 358 (5th Cir. 2006); United States v. Davis, 458 F.3d 491, 496 (6th Cir. 2006), petition for cert. pending, No. 06-7784 (filed Nov. 13, 2006); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005); United States v. Kendall, 446 F.3d 782, 785 (8th Cir. 2006); United States v. Bishop, 469 F.3d 896, 907 (10th Cir. 2006); United States v. Crisp, 454 F.3d 1285, 1291-1292 (11th Cir. 2006); cf. United States v. King, 454 F.3d 187, 195 (3d Cir. 2006) ("significant departure must be adequately supported by the record"); United States v. Simpson, 430 F.3d 1177, 1187 n.10 (D.C. Cir. 2005) (greater explanation is required for sentence outside Guide- lines range), cert. denied, 126 S. Ct. 1809 (2006). Cf. United States v. Ratto- balli, 452 F.3d 127, 134 (2d Cir. 2006) (court "ha[s] yet to adopt this standard").

2 See, e.g., 543 U.S. at 250 ("Congress' basic statutory goal" was "a system that diminishes sentencing disparity."); id. at 252 ("the sentencing statute's basic aim" was "ensuring similar sentences for those who have committed similar crimes in similar ways"); id. at 253 ("Congress' basic goal in passing the [SRA] was to move the sentencing system in the direction of increased uniformity."); id. at 255 ("Congress enacted the sentencing statutes in major part to achieve greater uniformity in sentencing."); id. at 256 ("Congress' basic statutory goal" was "uniformity in sentencing."); id. at 267 ("Congress' basic objective" was "promoting uniformity in sentencing.").

3 Petitioner incorrectly suggests (Br. 26) that Booker does not "grant the Guidelines * * * priority" over any other factor in Section 3553(b). Tellingly, petitioner relies for that assertion on quotes from the dissenting opinions. Ibid. (quoting Booker, 543 U.S. at 300 (Stevens, J., dissenting), and 543 U.S. at 304- 305 (Scalia, J. dissenting)). The Court, however, did not embrace the dissent's view but instead stressed the role of the Guidelines in ensuring that the SRA (after severance) would promote Congress's basic objectives. See Booker, 543 U.S. at 264 (distinguishing the role that the Court envisioned the Guidelines would play from the dissent's description).

4 A number of petitioner's amici (e.g., NACDL Br. 12-21, 21-28; WLF Br. 22- 25; Lee Br. 16) contend that the Guidelines do not adequately account for the Section 3553(a) factors and have not actually reduced sentencing disparities. As explained in the government's brief in Rita at 16-22, 24-32, the Guidelines do account for the Section 3553(a) factors and have fostered uniformity in sentencing similarly situated offenders. Petitioner's amici (e.g., WLF Br. 10- 22, 25-26; NYCDL Br. 9-11, 15; FAMM Br. 15-16) also raise various other criticisms of the Guidelines that the Sentencing Commission's amicus brief shows are without merit. More fundamentally, as this Court recognized in Booker, the fact that the Guidelines are not perfect does not form a basis to reject their continued use to advance the goals of the SRA. The usefulness of the Guidelines must be assessed in the context of the available alternatives. See Booker, 543 U.S. at 255-256, 263. And, as explained below, there is no alternative benchmark on which to base effective proportionality review.

5 Petitioner incorrectly asserts (Br. 44-45 & n.5) that a district court occupies the best position for deciding whether a particular sentence promotes or reduces sentencing disparity. District courts may see many cases that do not come before the courts of appeals, but they have little institutional basis for forming a view on how other district courts sentence similarly situated defendants. Nor do they have a ready way of assessing whether the individual ized factors that prompted them to impose an especially harsh or especially lenient sentence even roughly correspond with the approaches of other judges.

6 The Court noted in Booker that a similar reasonableness standard also applied to review of sentences imposed following the revocation of supervised release, and the Court cited several illustrative cases. See 543 U.S. at 262. Petitioner erroneously contends (Br. 18-19, 38-39) that the proportionality principle is inconsistent with those cases. None of those cases rejects a proportionality principle. And given the more limited statutory ranges typically available in cases of supervised release revocations and the narrower focus of those ranges, see Sentencing Guidelines Ch. 7, Pt. A(3)(b) (adopting primarily a "breach of trust" rationale), it is doubtful that those cases could furnish a comprehensive model for the review of all federal sentences, where a single crime carries a wide range and covers a wide array of conduct, offenders, and sentencing purposes. Whether or not a proportionality principle is needed in the review of supervised-release-revocation sentences, it is needed for the review of the thousands of initial federal sentences.

7 See, e.g., United States v. Repking, 467 F.3d 1091, 1095 (7th Cir. 2006) (noting inappropriateness of exclusive focus on percentage); Valtierra-Rojas, 468 F.3d at 1240 (noting that "there are no strict guideposts that invoke certain levels of scrutiny" and considering "both percentage and absolute time").

8 See, e.g., United States v. Wardlaw, 576 F.2d 932, 938-939 (1st Cir. 1978) (district court may not sentence based on "mechanistic" view that a particular crime always deserves a particular punishment; while general deterrence is a permissible factor, the individual circumstances of the defendant must be taken into account (citation omitted)); United States v. Schwarz, 500 F.2d 1350, 1352 (2d Cir. 1974) (per curiam) ("the court applied a fixed and mechanical approach in imposing sentence rather than a careful appraisal of the variable components relevant to the sentence upon an individual basis," which "requires us to invalidate the sentence"); United States v. Bowser, 497 F.2d 1017, 1019 (4th Cir. 1974) (vacating sentencing where court imposed the maximum sentence for bank robbery of 25 years of imprisonment where circumstances suggested that there may not have been an "actual exercise of discretion"), cert. denied, 419 U.S. 857 (1974); United States v. Daniels, 446 F.2d 967, 971 (6th Cir. 1971) (reversal permitted when district court "grossly abused his discretion by failing to evaluate the relevant information before him with due regard for the factors appropriate to sentencing"; "[a] trial court which fashions an inflexible practice in sentencing contradicts the judicially approved policy in favor of 'individualiz ing sentences'" (quoting Williams v. New York, 337 U.S. at 248)); Woosley v. United States, 478 F.2d 139, 143 (8th Cir. 1973) (review permitted if sentence was "shown to have been imposed on a mechanical basis," which conflicts with Williams v. New York, supra); United States v. Barker, 771 F.2d 1362, 1367 (9th Cir. 1985) (imposition of maximum term without individualizing sentences was an abuse of discretion; "mechanized sentencing" based on "the category of the crime, rather than the culpability of each individual criminal," is improper); United States v. Roper, 681 F.2d 1354, 1361 (11th Cir. 1982)) (disapproving of "rigid and mechanical sentencing procedures by which the district court bypasses the defendant's individual circumstances and metes out a sentence based on the category of crime"); United States v. McCoy, 429 F.2d 739, 743 (D.C. Cir. 1970) (per curiam) (Stated policy of sentencing anyone convicted by a jury of armed robbery to a life sentence "completely undermines the basis on which trial judges have been accorded wide latitude in exercising discretion in determining sentences * * * . [A] rigid policy based solely on the crime with which the defendant is charged is not an exercise of discretion.")

9 Barker, 771 F.2d at 1367; Daniels, 446 F.2d at 971-972.

10 Those statistics may well overstate the rate of non-government sponsored departures. Government sponsorship may not be perfectly reflected in the figures, particularly for circuits that handled a large volume of immigration cases (e.g., the Fifth and the Ninth). It is also clear that, in virtually all circuits, departure rates dropped significantly in the years immediately before Booker-when the PROTECT Act was in effect-and rose significantly after Booker.

11 Although petitioner asserts (Br. 29) that the Eighth Circuit does not apply the proportionality principle in deciding appeals of above-Guidelines sentences, that is incorrect. See, e.g., United States v. Kendall, 446 F.3d 782, 785 (8th Cir. 2006).

12 Petitioner's lack of a criminal record placed him in the lowest criminal history category (category I), Sentencing Guidelines Ch. 5, Pt. A (Sentencing Table), and was one of the criteria that made him eligible for the "safety valve," id. § 5C1.2(a)(1). The quantity of drugs for which petitioner was held respon sible (between 5 and 20 grams of cocaine base) determined his base offense level (level 26). Id. § 2D1.1(a)(3) and (c)(7). And petitioner's eligibility for the "safety valve" reduced his offense level by two levels, id. § 2D1.1(b)(9), and authorized the district court to impose a sentence below the five-year statutory minimum, 18 U.S.C. 3553(f).

13 See, e.g., Bishop, 469 F.3d at 907 ("an extreme variance must be justified by § 3553(a) factors that are particular and individualized, not those that may be common to many defendants"); Rattoballi, 452 F.3d at 133-134 ("[O]n appellate review, we will view as inherently suspect a non-Guidelines sentence that rests primarily upon factors that are not unique or personal to a particular defendant, but instead reflects attributes common to all defendants. Disparate sentences prompted the passage of the Sentencing Reform Act and remain its principal concern."); United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006) ("When a factor is already included in the calculation of the guidelines sentencing range, a judge who wishes to rely on that same factor to impose a sentence above or below the range must articulate specifically the reasons that this particular defendant's situation is different from the ordinary situation covered by the guidelines calculation."); United States v. Myers, 439 F.3d 415, 418 (8th Cir. 2006) ("[The defendant's] lack of a criminal history, while reflected in the advisory sentencing guidelines, was properly considered as part of 'the history and characteristics of the defendant.' * * * Inasmuch as a guidelines sentence reflects a defendant's criminal history, [however,] a wide divergence from the guidelines sentence based solely on this single criterion would conflict with the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.") (quoting 18 U.S.C. 3553(a)(1), and citing 18 U.S.C. 3553(a)(6)).

14 The court of appeals believed it a "fair inference" that petitioner distri buted additional quantities of crack between the dates of his two arrests. J.A. 91. That inference may well be warranted. Even if it is not, however, or even if the court of appeals was not the appropriate court to draw it (Pet. Br. 42-43), the circumstances described above are sufficient by themselves to justify the conclusion that the advisory Guidelines range does not overstate, and likely understates, petitioner's culpability.

15 See Spears, 469 F.3d at 1170-1178; United States v. Castillo, 460 F.3d 337, 355-361 (2d Cir. 2006); United States v. Jointer, 457 F.3d 682, 685-688 (7th Cir. 2006), petition for cert. pending, No. 06-7600 (filed Oct. 27, 2006); United States v. Williams, 456 F.3d 1353, 1364-1369 (11th Cir. 2006), petition for cert. pending, No. 06-7352 (filed Oct. 19, 2006); United States v. Eura, 440 F.3d 625, 632-634 (4th Cir. 2006), petition for cert. pending, No. 05-11659 (filed June 20, 2006); United States v. Pho, 433 F.3d 53, 61-65 (1st Cir. 2006); cf. United States v. Gunter, 462 F.3d 237, 249 (3d Cir. 2006) ("[A]though the issue is not before us, we do not suggest (or even hint) that the [District] Court [may] categori cally reject the 100:1 ratio and substitute its own, as this is verboten.").

1. APPENDIX

CONSTITUTION AND STATUTORY
PROVISIONS INVOLVED

1. The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

2. Section 3553 of Title 18 (2000 & Supp. IV 2004) pro vides:

Imposition of a sentence

(a) FACTORS TO BE CONSIDERED IN IMPOSING A SENTENCE.-The court shall impose a sentence suffi cient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider-

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed-

(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 defendant; 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 for-

(A) the applicable category of offense com mitted by the applicable category of defendant as set forth in the guidelines-

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amend ments made to such guidelines by act of Con gress (regardless of whether such amend ments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742 (g), are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Com mission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incor porated by the Sentencing Commission into amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement-

(A) issued by the Sentencing Commission pur suant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regard less of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sen tenced.1

(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.

(b) APPLICATION OF GUIDELINES IN IMPOSING A SENTENCE.-

(1) In General-Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applic able to similar offenses and offenders, and to the applic able policy statements of the Sentencing Commission.

(2) Child crimes and sexual offenses-

(A)2 Sentencing-In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless-

(i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into considera tion by the Sentencing Commission in for mulating the guidelines that should result in a sentence greater than that described;

(ii) the court finds that there exists a mitigating circumstance of a kind or to a degree, that-

(I) has been affirmatively and speci fically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued un der section 994(a) of title 28, taking ac count of any amendments to such sentenc ing guidelines or policy statements by Congress;

(II) has not been taken into consi deration by the Sentencing Commission in formulating the guidelines; and

(III) should result in a sentence dif ferent from that described; or

(iii) the court finds, on motion of the Gov ernment, that the defendant has provided substantial assistance in the investigation or prosecution of another person who has com mitted an offense and that this assistance established a mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence lower than that described.

In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission, together with any amendments thereto by act of Congress. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applic able to similar offenses and offenders, and to the appl icable policy statements of the Sentencing Commission, together with any amendments to such guidelines or policy statements by act of Congress.

(c) STATEMENT OF REASONS FOR IMPOSING A SEN TENCE.-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-

(1) is of the kind, and within the range, described in subsection (a)(4), and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range; or

(2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in the written order of judgment and com mitment, except to the extent that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32. In the event that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32 the court shall state that such statements were so received and that it relied upon the content of such statements.

If the court does not order restitution, or orders only partial restitution, the court shall include in the state ment the reason therefor. The court shall provide a transcription or other appropriate public record of the courts statement of reasons, together with the order of judgment and commitment, to the Probation System and to the Sentencing Commission,,3 and, if the sentence includes a term of imprisonment, to the Bureau of Prisons.

(d) PRESENTENCE PROCEDURE FOR AN ORDER OF NOTICE.-Prior to imposing an order of notice pursuant to section 3555, the court shall give notice to the defendant and the Government that it is considering imposing such an order. Upon motion of the defendant or the Government, or on its own motion, the court shall-

(1) permit the defendant and the Government to submit affidavits and written memoranda addressing matters relevant to the imposition of such an order;

(2) afford counsel an opportunity in open court to address orally the appropriateness of the imposition of such an order; and

(3) include in its statement of reasons pursuant to subsection (c) specific reasons underlying its determinations regarding the nature of such an order.

Upon motion of the defendant or the Government, or on its own motion, the court may in its discretion employ any additional procedures that it concludes will not unduly complicate or prolong the sentencing process.

(e) LIMITED AUTHORITY TO IMPOSE A SENTENCE BELOW A STATUTORY MINIMUM.-Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendants sub stantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guide lines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.

(f) LIMITATION ON APPLICABILITY OF STATUTORY MINIMUMS IN CERTAIN CASES.-Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pur suant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommen dation, that-

(1) the defendant does not have more than 1 criminal history point, as determined under the sen tencing guidelines;

(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dan gerous weapon (or induce another participant to do so) in connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and

(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defen dant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the infor mation shall not preclude a determination by the court that the defendant has complied with this requirement.

3. Section 3742 of Title 18 (2000 & Supp. IV 2004) provides:

Review of a sentence

(a) Appeal by a Defendant.-A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence-

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect appli cation of the sentencing guidelines; or

(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprison ment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range; or

(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

(b) APPEAL BY THE GOVERNMENT.-The Govern ment may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence-

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines;

(3) is less than the sentence specified in the ap plicable guideline range to the extent that the sen tence includes a lesser fine or term of imprisonment, probation, or supervised release than the minimum established in the guideline range, or includes a less limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the minimum established in the guideline range; or

(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

The Government may not further prosecute such appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General.

(c) PLEA AGREEMENTS.-In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules of Criminal Pro cedure-

(1) a defendant may not file a notice of appeal under paragraph (3) or (4) of subsection (a) unless the sentence imposed is greater than the sentence set forth in such agreement; and

(2) the Government may not file a notice of appeal under paragraph (3) or (4) of subsection (b) unless the sentence imposed is less than the sentence set forth in such agreement.

(d) RECORD ON REVIEW.-If a notice of appeal is filed in the district court pursuant to subsection (a) or (b), the clerk shall certify to the court of appeals-

(1) that portion of the record in the case that is designated as pertinent by either of the parties;

(2) the presentence report; and

(3) the information submitted during the sen tencing proceeding.

(e) CONSIDERATION.-Upon review of the record, the court of appeals shall determine whether the sen tence-

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines;

(3) is outside the applicable guideline range, and

(A) the district court failed to provide the written statement of reasons required by section 3553(c);

(B) the sentence departs from the applicable guideline range based on a factor that-

(i) does not advance the objectives set forth in section 3553(a)(2); or

(ii) is not authorized under section 3553(b); or

(iii) is not justified by the facts of the case; or

(C) the sentence departs to an unreasonable degree from the applicable guidelines range, having regard for the factors to be considered in imposing a sentence, as set forth in section 3553(a) of this title and the reasons for the im position of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or

(4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly un reasonable.

The court of appeals shall give due regard to the op portunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and, except with respect to determinations under subsection (3)(A) or (3)(B), shall give due deference to the district court's application of the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the district court's application of the guidelines to the facts.

(f) DECISION AND DISPOSITION.-If the court of appeals determines that-

(1) the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate;

(2) the sentence is outside the applicable guide line range and the district court failed to provide the required statement of reasons in the order of judg ment and commitment, or the departure is based on an impermissible factor, or is to an unreasonable degree, or the sentence was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable, it shall state specific reasons for its conclusions and-

(A) if it determines that the sentence is too high and the appeal has been filed under sub section (a), it shall set aside the sentence and remand the case for further sentencing proceed ings with such instructions as the court con siders appropriate, subject to subsection (g);

(B) if it determines that the sentence is too low and the appeal has been filed under sub section (b), it shall set aside the sentence and remand the case for further sentencing proceed ings with such instructions as the court con siders appropriate, subject to subsection (g);

(3) the sentence is not described in paragraph (1) or (2), it shall affirm the sentence.

(g) SENTENCING UPON REMAND.-A district court to which a case is remanded pursuant to subsection (f)(1) or (f)(2) shall resentence a defendant in accor dance with section 3553 and with such instructions as may have been given by the court of appeals, except that-

(1) In determining the range referred to in sub section 3553(a)(4), the court shall apply the guide lines issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, and that were in effect on the date of the previous sentencing of the defendant prior to the appeal, together with any amendments thereto by any act of Congress that was in effect on such date; and

(2) The court shall not impose a sentence outside the applicable guidelines range except upon a ground that-

(A) was specifically and affirmatively included in the written statement of reasons required by section 3553(c) in connection with the previous sentencing of the defendant prior to the appeal; and

(B) was held by the court of appeals, in re manding the case, to be a permissible ground of departure.

(h) APPLICATION TO A SENTENCE BY A MAGISTRATE JUDGE.-An appeal of an otherwise final sentence imposed by a United States magistrate judge may be taken to a judge of the district court, and this section shall apply (except for the requirement of approval by the Attorney General or the Solicitor General in the case of a Government appeal) as though the appeal were to a court of appeals from a sentence imposed by a district court.

(i) GUIDELINE NOT EXPRESSED AS A RANGE.-For the purpose of this section, the term "guideline range" includes a guideline range having the same upper and lower limits.

(j) DEFINITIONS.-For purposes of this section-

(1) a factor is a "permissible" ground of depar ture if it-

(A) advances the objectives set forth in section 3553(a)(2); and

(B) is authorized under section 3553(b); and

(C) is justified by the facts of the case; and

(2) a factor is an "impermissible" ground of de parture if it is not a permissible factor within the meaning of subsection (j)(1).

4. Section 991 of Title 28 (2000 & Supp. IV 2004) provides:

United States Sentencing Commission; establishment and purposes

(a) There is established as an independent com mission in the judicial branch of the United States a United States Sentencing Commission which shall consist of seven voting members and one nonvoting member. The President, after consultation with repre sentatives of judges, prosecuting attorneys, defense attorneys, law enforcement officials, senior citizens, victims of crime, and others interested in the criminal justice process, shall appoint the voting members of the Commission, by and with the advice and consent of the Senate, one of whom shall be appointed, by and with the advice and consent of the Senate, as the Chair and three of whom shall be designated by the President as Vice Chairs. Not more than 3 of the members shall be Federal judges selected after considering a list of six judges recommended to the President by the Judicial Conference of the United States. Not more than four of the members of the Commission shall be members of the same political party, and of the three Vice Chairs, no more than two shall be members of the same political party. The Attorney General, or the Attorney Generals designee, shall be an ex officio, nonvoting member of the Commission. The Chair, Vice Chairs, and members of the Commission shall be subject to removal from the Commission by the President only for neglect of duty or malfeasance in office or for other good cause shown.

(b) The purposes of the United States Sentencing Commission are to-

(1) establish sentencing policies and practices for the Federal criminal justice system that-

(A) assure the meeting of the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code;

(B) provide certainty and fairness in meeting the purposes of sentencing, avoiding unwar ranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices; and

(C) reflect, to the extent practicable, advance ment in knowledge of human behavior as it relates to the criminal justice process; and

(2) develop means of measuring the degree to which the sentencing, penal, and correctional prac tices are effective in meeting the purposes of sen tencing as set forth in section 3553(a)(2) of title 18, United States Code.

5. Section 994 of Title 28 (2000 & Supp. IV 2004) provides:

Duties of the Commission

(a) The Commission, by affirmative vote of at least four members of the Commission, and pursuant to its rules and regulations and consistent with all pertinent provisions of any Federal statute shall promulgate and distribute to all courts of the United States and to the United States Probation System-

(1) guidelines, as described in this section, for use of a sentencing court in determining the sentence to be imposed in a criminal case, including-

(A) a determination whether to impose a sentence to probation, a fine, or a term of impri sonment;

(B) a determination as to the appropriate amount of a fine or the appropriate length of a term of probation or a term of imprisonment;

(C) a determination whether a sentence to a term of imprisonment should include a require ment that the defendant be placed on a term of supervised release after imprisonment, and, if so, the appropriate length of such a term;

(D) a determination whether multiple sen tences to terms of imprisonment should be ordered to run concurrently or consecutively; and

(E) a determination under paragraphs (6) and (11) of section 3563(b) of title 18;

(2) general policy statements regarding appli cation of the guidelines or any other aspect of sentencing or sentence implementation that in the view of the Commission would further the purposes set forth in section 3553(a)(2) of title 18, United States Code, including the appropriate use of-

(A) the sanctions set forth in sections 3554, 3555, and 3556 of title 18;

(B) the conditions of probation and supervised release set forth in sections 3563(b) and 3583(d) of title 18;

(C) the sentence modification provisions set forth in sections 3563(c), 3564, 3573, and 3582(c) of title 18;

(D) the fine imposition provisions set forth in section 3572 of title 18;

(E) the authority granted under rule 11(e)(2) of the Federal Rules of Criminal Procedure to accept or reject a plea agreement entered into pursuant to rule 11(e)(1); and

(F) the temporary release provisions set forth in section 3622 of title 18, and the prerelease custody provisions set forth in section 3624(c) of title 18; and

(3) guidelines or general policy statements regarding the appropriate use of the provisions for revocation of probation set forth in section 3565 of title 18, and the provisions for modification of the term or conditions of supervised release and revo cation of supervised release set forth in section 3583(e) of title 18.

(b)(1) The Commission, in the guidelines promul gated pursuant to subsection (a)(1), shall, for each cate gory of offense involving each category of defendant, establish a sentencing range that is consistent with all pertinent provisions of title 18, United States Code.

(2) If a sentence specified by the guidelines includes a term of imprisonment, the maximum of the range established for such a term shall not exceed the minimum of that range by more than the greater of 25 percent or 6 months, except that, if the minimum term of the range is 30 years or more, the maximum may be life imprisonment.

(c) The Commission, in establishing categories of offenses for use in the guidelines and policy statements governing the imposition of sentences of probation, a fine, or imprisonment, governing the imposition of other authorized sanctions, governing the size of a fine or the length of a term of probation, imprisonment, or super vised release, and governing the conditions of probation, supervised release, or imprisonment, shall consider whether the following matters, among others, have any relevance to the nature, extent, place of service, or other incidents4 of an appropriate sentence, and shall take them into account only to the extent that they do have relevance-

(1) the grade of the offense;

(2) the circumstances under which the offense was committed which mitigate or aggravate the seriousness of the offense;

(3) the nature and degree of the harm caused by the offense, including whether it involved property, irreplaceable property, a person, a number of per sons, or a breach of public trust;

(4) the community view of the gravity of the offense;

(5) the public concern generated by the offense;

(6) the deterrent effect a particular sentence may have on the commission of the offense by others; and

(7) the current incidence of the offense in the community and in the Nation as a whole.

(d) The Commission in establishing categories of defendants for use in the guidelines and policy state ments governing the imposition of sentences of proba tion, a fine, or imprisonment, governing the imposition of other authorized sanctions, governing the size of a fine or the length of a term of probation, imprisonment, or supervised release, and governing the conditions of probation, supervised release, or imprisonment, shall consider whether the following matters, among others, with respect to a defendant, have any relevance to the nature, extent, place of service, or other incidents5 of an appropriate sentence, and shall take them into account only to the extent that they do have relevance-

(1) age;

(2) education;

(3) vocational skills;

(4) mental and emotional condition to the extent that such condition mitigates the defendant's cul pability or to the extent that such condition is other wise plainly relevant;

(5) physical condition, including drug dependence;

(6) previous employment record;

(7) family ties and responsibilities;

(8) community ties;

(9) role in the offense;

(10) criminal history; and

(11) degree of dependence upon criminal activity for a livelihood.

The Commission shall assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders.

(e) The Commission shall assure that the guidelines and policy statements, in recommending a term of imprisonment or length of a term of imprisonment, reflect the general inappropriateness of considering the education, vocational skills, employment record, family ties and responsibilities, and community ties of the defendant.

(f) The Commission, in promulgating guidelines pursuant to subsection (a)(1), shall promote the pur poses set forth in section 991(b)(1), with particular attention to the requirements of subsection 991(b)(1)(B) for providing certainty and fairness in sentencing and reducing unwarranted sentence disparities.

(g) The Commission, in promulgating guidelines pursuant to subsection (a)(1) to meet the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code, shall take into account the nature and capacity of the penal, correctional, and other facili ties and services available, and shall make recom mendations concerning any change or expansion in the nature or capacity of such facilities and services that might become necessary as a result of the guidelines promulgated pursuant to the provisions of this chapter. The sentencing guidelines prescribed under this chapter shall be formulated to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons, as determined by the Commission.

(h) The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defen dants in which the defendant is eighteen years old or older and-

(1) has been convicted of a felony that is-

(A) a crime of violence; or

(B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and Chapter 705 of Title 46; and

(2) has previously been convicted of two or more prior felonies, each of which is-

(A) a crime of violence; or

(B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and Chapter 705 of Title 46.

(i) The Commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment for categories of defendants in which the defendant-

(1) has a history of two or more prior Federal, State, or local felony convictions for offenses com mitted on different occasions;

(2) committed the offense as part of a pattern of criminal conduct from which the defendant derived a substantial portion of the defendant's income;

(3) committed the offense in furtherance of a conspiracy with three or more persons engaging in a pattern of racketeering activity in which the defen dant participated in a managerial or supervisory capacity;

(4) committed a crime of violence that constitutes a felony while on release pending trial, sentence, or appeal from a Federal, State, or local felony for which he was ultimately convicted; or

(5) committed a felony that is set forth in section 401 or 1010 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 841 and 960), and that involved trafficking in a sub stantial quantity of a controlled substance.

(j) The Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense, and the general appropriateness of imposing a term of imprisonment on a person convicted of a crime of violence that results in serious bodily injury.

(k) The Commission shall insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.

(l) The Commission shall insure that the guidelines promulgated pursuant to subsection (a)(1) reflect-

(1) the appropriateness of imposing an incre mental penalty for each offense in a case in which a defendant is convicted of-

(A) multiple offenses committed in the same course of conduct that result in the exercise of ancillary jurisdiction over one or more of the offenses; and

(B) multiple offenses committed at different times, including those cases in which the sub sequent offense is a violation of section 3146 (penalty for failure to appear) or is committed while the person is released pursuant to the pro visions of section 3147 (penalty for an offense committed while on release) of title 18; and

(2) the general inappropriateness of imposing consecutive terms of imprisonment for an offense of conspiring to commit an offense or soliciting commis sion of an offense and for an offense that was the sole object of the conspiracy or solicitation.

(m) The Commission shall insure that the guidelines reflect the fact that, in many cases, current sentences do not accurately reflect the seriousness of the offense. This will require that, as a starting point in its develop ment of the initial sets of guidelines for particular cate gories of cases, the Commission ascertain the average sentences imposed in such categories of cases prior to the creation of the Commission, and in cases involving sentences to terms of imprisonment, the length of such terms actually served. The Commission shall not be bound by such average sentences, and shall indepen dently develop a sentencing range that is consistent with the purposes of sentencing described in section 3553(a)(2) of title 18, United States Code.

(n) The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defen dant's substantial assistance in the investigation or prosecution of another person who has committed an offense.

(o) The Commission periodically shall review and revise, in consideration of comments and data coming to its attention, the guidelines promulgated pursuant to the provisions of this section. In fulfilling its duties and in exercising its powers, the Commission shall consult with authorities on, and individual and institutional represen tatives of, various aspects of the Federal criminal justice system. The United States Probation System, the Bureau of Prisons, the Judicial Conference of the United States, the Criminal Division of the United States De partment of Justice, and a representative of the Federal Public Defenders shall submit to the Commission any observations, comments, or questions pertinent to the work of the Commission whenever they believe such communication would be useful, and shall, at least annually, submit to the Commission a written report commenting on the operation of the Commission's guidelines, suggesting changes in the guidelines that appear to be warranted, and otherwise assessing the Commission's work.

(p) The Commission, at or after the beginning of a regular session of Congress, but not later than the first day of May, may promulgate under subsection (a) of this section and submit to Congress amendments to the guidelines and modifications to previously submitted amendments that have not taken effect, including modifications to the effective dates of such amendments. Such an amendment or modification shall be accom panied by a statement of the reasons therefor and shall take effect on a date specified by the Commission, which shall be no earlier than 180 days after being so submitted and no later than the first day of November of the calendar year in which the amendment or modification is submitted, except to the extent that the effective date is revised or the amendment is otherwise modified or disapproved by Act of Congress.

(q) The Commission and the Bureau of Prisons shall submit to Congress an analysis and recommendations concerning maximum utilization of resources to deal effectively with the Federal prison population. Such report shall be based upon consideration of a variety of alternatives, including-

(1) modernization of existing facilities;

(2) inmate classification and periodic review of such classification for use in placing inmates in the least restrictive facility necessary to ensure ad equate security; and

(3) use of existing Federal facilities, such as those currently within military jurisdiction.

(r) The Commission, not later than two years after the initial set of sentencing guidelines promulgated under subsection (a) goes into effect, and thereafter whenever it finds it advisable, shall recommend to the Congress that it raise or lower the grades, or otherwise modify the maximum penalties, of those offenses for which such an adjustment appears appropriate.

(s) The Commission shall give due consideration to any petition filed by a defendant requesting modification of the guidelines utilized in the sentencing of such defendant, on the basis of changed circumstances unrelated to the defendant, including changes in-

(1) the community view of the gravity of the offense;

(2) the public concern generated by the offense; and

(3) the deterrent effect particular sentences may have on the commission of the offense by others.

(t) The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall de scribe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.

(u) If the Commission reduces the term of im prisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.

(v) The Commission shall ensure that the general policy statements promulgated pursuant to subsection (a)(2) include a policy limiting consecutive terms of imprisonment for an offense involving a violation of a general prohibition and for an offense involving a violation of a specific prohibition encompassed within the general prohibition.

(w)(1) The Chief Judge of each district court shall ensure that, within 30 days following entry of judgment in every criminal case, the sentencing court submits to the Commission, in a format approved and required by the Commission, a written report of the sentence, the offense for which it is imposed, the age, race, sex of the offender, and information regarding factors made rele vant by the guidelines. The report shall also include-

(A) the judgment and commitment order;

(B) the written statement of reasons for the sentence imposed (which shall include the reason for any departure from the otherwise applicable guideline range and which shall be stated on the written statement of reasons form issued by the Judicial Conference and approved by the United States Sentencing Commission);

(C) any plea agreement;

(D) the indictment or other charging document;

(E) the presentence report; and

(F) any other information as the Commission finds appropriate.

The information referred to in subparagraphs (A) through (F) shall be submitted by the sentencing court in a format approved and required by the Commission.

(2) The Commission shall, upon request, make available to the House and Senate Committees on the Judiciary, the written reports and all underlying records accompanying those reports described in this section, as well as other records received from courts.

(3) The Commission shall submit to Congress at least annually an analysis of these documents, any rec ommendations for legislation that the Commission con cludes is warranted by that analysis, and an accounting of those districts that the Commission believes have not submitted the appropriate information and documents required by this section.

(4) The Commission shall make available to the Attorney General, upon request, such data files as the Commission itself may assemble or maintain in elec tronic form as a result of the information submitted under paragraph (1). Such data files shall be made available in electronic form and shall include all data fields requested, including the identity of the sentencing judge.

(x) The provisions of section 553 of title 5, relating to publication in the Federal Register and public hear ing procedure, shall apply to the promulgation of guide lines pursuant to this section.

(y) The Commission, in promulgating guidelines pursuant to subsection (a)(1), may include, as a com ponent of a fine, the expected costs to the Government of any imprisonment, supervised release, or probation sentence that is ordered.

 

1 So in original. The period probably should be a semicolon.

2 So in original. No subpar. (B) has been enacted.

3 So in original. The second comma probably should not appear.

4 So in original. Probably should be "incidence."

5 So in original. Probably should be "incidence."