                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                No. 08-10221
               Plaintiff-Appellant,          D.C. No.
               v.                        2:07-cr-01213-
RANDY L. BRAGG,                               EHC-1
              Defendant-Appellee.
                                           OPINION

       Appeal from the United States District Court
                for the District of Arizona
        Earl H. Carroll, District Judge, Presiding

                Argued February 9, 2009
              Submitted September 17, 2009
                San Francisco, California

                 Filed September 23, 2009

      Before: John T. Noonan, Marsha S. Berzon and
             N. Randy Smith, Circuit Judges.

                Opinion by Judge Noonan;
                Dissent by Judge N. Smith




                           13765
                   UNITED STATES v. BRAGG              13767




                        COUNSEL

Mark Determan, Washington, D.C., for the plaintiff-appellant.

Anthony E. Colombo, San Diego, California, for the
defendant-appellee.
13768              UNITED STATES v. BRAGG
                         OPINION

NOONAN, Circuit Judge:

   The United States appeals the sentence imposed on Randy
L. Bragg after he pled guilty to two counts of filing false
quarterly employment tax returns in violation of 26 U.S.C.
§ 7206(1). We hold that the district judge failed to explain
adequately the sentence he imposed. Accordingly, we vacate
the sentence and remand with directions that the court explain
its sentence adequately.

                           FACTS

   In 1999, Bragg formed Consolidated Human Resources
Az., Inc. (CHRAZ), an Arizona corporation providing payroll
and other services to clients, taking on the clients’ employees
as its own and leasing them back to the clients. Bragg became
the owner and president of CHRAZ.

  During 2000, CHRAZ had responsibility for the employ-
ment taxes of thousands of employees. The clients of CHRAZ
paid the company the employers’ share of employment taxes
and the amounts that the clients withheld to cover the employ-
ees’ share. These sums, amounting to $2,000,000, were to be
paid by CHRAZ to the Internal Revenue Service.

   For the four quarters of 2000, Bragg, acting on behalf of
CHRAZ, filed federal employment tax returns showing zero
wages paid. For the same period, he filed state returns for
CHRAZ showing over $8,000,000 in wages paid. The federal
returns were false.

   In April 2004, agents of the Internal Revenue Service dis-
covered that there was a discrepancy between the federal
returns and the state returns and that CHRAZ had not filed a
federal corporate income tax return for 2000. On November
6, 2007, Bragg entered into a plea agreement, pleading guilty
                   UNITED STATES v. BRAGG                13769
to filing false federal employment tax returns for the quarters
ending September 30, 2000 and December 31, 2000. He
agreed that the tax loss was $1,202,600 and that he would
make his best effort to pay this amount by the date of sentenc-
ing.

   On March 14, 2008, a probation officer filed Bragg’s pre-
sentence report. It established that Bragg had been twice con-
victed of misdemeanor sex offenses, four times of driving
under the influence, and once of obstruction of the mail (for
diverting checks from the IRS from the rightful recipient to
his own post office box). Bragg was still on probation for the
mail offense when he committed the crime at issue here.

   Bragg had enlisted in the Marines at the age of 16, served
seven years, had suffered a wound in “a classified incident,”
and had been honorably discharged as a sergeant. In 1992, he
graduated from college at Arizona State University. From
2003-2007, he obtained three master’s degrees from the Kel-
ler Graduate School of Business Management. He was cur-
rently working for a doctorate in Information Systems at
Cuapella University, Redlands, California. Since 2002, he has
managed Brownstone Corporation, a firm involved in infor-
mation technology. He had assets of $700,000, debt of
$1,200,000 (the amount owed the IRS), and so a negative net
worth of $500,000. He was currently earning $8,500 per
month from Brownstone Corporation.

   On April 11, 2008, the district court began a sentencing
hearing. After accepting Bragg’s plea of guilty, the court
invited him to tell the court about himself and his circum-
stances. Bragg stated that he had suffered from alcoholism but
in late 2000 had entered a rehabilitation program and
embarked on graduate education. He had started a charity pro-
viding scholarships for disabled veterans and underprivileged
persons. He had been current on his taxes since 2000 and he
intended to pay the full amount of tax now owed within
twelve months, borrowing the money “from the companies
13770               UNITED STATES v. BRAGG
my dad runs.” Counsel for Bragg elaborated on his rehabilita-
tion and stated that he had a check for $302,000, ready to pay
as the first installment on the tax owed.

   The government had recommended a sentence of two
years, three months, a sentence at the lower end of the Guide-
lines. The government argued in support of its recommenda-
tion. Bragg’s attorney requested home confinement rather
than custody. The court responded that it was inclined to
place Bragg on supervised release.

   On April 14, the sentencing hearing resumed. The court
was informed that Bragg had now at hand $602,000 toward
payment of the tax and had stipulated to pay $50,000 per
month to make up the balance. The court declared that it
would take the payment and the promise into consideration in
framing a sentence.

   The government renewed its argument for a prison sen-
tence. The court stated that it had “reviewed the Gall decision
and the circumstances there that the court can consider in
making sentencing determinations.” The court stated that it
had “considered and evaluated” 18 U.S.C § 3553(a) “and the
various factors there.” The court added: “One thing I’ve
learned, I suppose, and maybe it’s wrong to say that in these
sentencing procedures, but sending messages generally don’t
get much beyond the postage on the message. And that
doesn’t do anything for anybody. And that’s just some cliche
that keeps coming up about that. If that were true, given some
of the tax cases that have occurred over the years, why, peo-
ple would be paying in advance.”

   The court then noted that CHRAZ no longer existed; that
the offenses were “serious;” and that payment of the $600,000
plus the promise to pay in full were remarkable. As to “just
punishment,” the court declared,” certainly part of that is the
payment.” The court stated that the payment should include
interest and penalties. The court said it gave particular consid-
                    UNITED STATES v. BRAGG                13771
eration to “the viability” of Bragg’s “business activities,” and
to the fact that seven years had passed since the commission
of the crime.

   The court then imposed a sentence of 36 months probation,
of which two years were to be served on supervised release;
payment of the $1,200,000 and a special assessment of $200.
The court described the sentence as “a variance.” The court
stated that it was not going to impose a fine.

   On April 17, the court sua sponte continued the hearing by
telephone. The defendant was not on the line. The court stated
that it was going to modify the sentence to impose a fine. The
government said that the defendant had to be present. The
court stated, “I hesitate to have the defendant come back.”
The court accepted a waiver of his presence filed by his coun-
sel. The court added a fine of $20,000 to the sentence.

  The Amended Judgment reads as follows:

          CRIMINAL MONETARY PENALTIES

SPECIAL ASSESSMENT: $200.00 FINE: $20,000. RESTI-
TUTION: $1,202,660.58

This Court finds the defendant does not have the ability to pay
a fine and orders the fine waived.

The defendant shall pay restitution to the Internal Revenue
Service (IRS) in the amount of $1,202,660.58, including any
interest and penalties. The defendant shall make a restitution
payment of $602,660.58 today. The balance of the restitution
shall be pain [sic] in increments of $50,000.00 beginning on
May 1, 2008. The last payment is due on April 1, 2009.

The Court imposes a fine in the amount of $10,000.00 on
each count for a total of $20,000.00 to be paid not later than
ten days from this date.
13772               UNITED STATES v. BRAGG
  The government appeals the sentence.

                          ANALYSIS

   Deciding this appeal, we take our cue from the sage advice
of Justice Stevens speaking for the Court in Gall v. United
States, 128 S. Ct. 586 (2007). Each case of sentencing is a
unique case. Id. at 598. A human person is being subjected to
the force of the state. The sentence cannot be calibrated
mechanically by looking at a chart of possible penalties. The
district court has discretion to take into consideration all the
factors in the record. Our job as appellate judges is not to give
the sentence we would have given but to determine whether
the district judge abused the ample discretion vested in him.
Id.; see also United States v. Whitehead, 532 F.3d 991, 993
(9th Cir. 2008). At the same time the district judge “must ade-
quately explain the chosen sentence to allow for meaningful
appellate review.” Gall, 128 S. Ct at 597.

   The district judge was “intimately familiar with the nature
of the crime and the defendant’s role in it” and in a “superior
position” to find the relevant facts, to “judge their import,”
and to appraise the sincerity of those testifying at sentencing.
See Whitehead, 532 F.3d at 993. The district judge considered
the Guidelines, the 18 U.S.C. § 3553(a) factors, and the par-
ties’ arguments. He then articulated the basis for exercising
his own decisionmaking authority and imposed sentence
based on the facts as he saw them. See United States v. Carty,
520 F.3d 991, 992, 996 (9th Cir. 2008) (citations omitted);
Whitehead, 532 F.3d at 597. Probation is not leniency. Gall,
128 S. Ct. at 593, 596. Therefore, the sentence should be
affirmed. Q.E.D..

  [1] Four things, however, are questionable in the court’s
explanation of the sentence. First, there is the reference to
Bragg’s role in managing his father’s business, Brownstone
Corporation, a position which pays a yearly salary of
$100,000. Bragg’s father — an “accredited tax advisor” —
                    UNITED STATES v. BRAGG                 13773
submitted that his son’s continued management of the busi-
ness is vital to Brownstowne’s continued viability and suc-
cess. The record, in fact, is far from clear as to Bragg’s
indispensability in any business. He himself spoke of “the
companies my Dad runs.” In the absence of any financial
records of the business, it is not clear that restitution would be
affected by Bragg’s incarceration.

  Bragg relies on United States v. Milikowsky, 65 F.3d 4 (2d
Cir. 1996). The Second Circuit held that the district court in
sentencing a violator of the antitrust laws could take account
of the disastrous effect the defendant’s imprisonment would
have on the employees of the business. The court stated:

    Before the court were unrebutted letters and testi-
    mony from family members, employees, business
    associates, and Milikowsky’s chief trade creditor
    attesting to his indispensability to Jordan and Pros-
    pect, Milikowsky’s two remaining businesses. This
    record, undisputed by the government, allowed the
    court to conclude that Milikowsky is the only indi-
    vidual with the knowledge, skill, experience, and
    relationships to run Jordan, the steel trading concern,
    on a daily basis: he is the sole buyer of all steel, the
    only person with the requisite ability and contacts to
    buy steel at competitive rates, the most successful
    seller, and the person who deals with Jordan’s cus-
    tomers and suppliers. The record allowed the court
    to conclude, additionally, that Milikowsky’s daily
    involvement at Jordan is necessary to ensure the con-
    tinuing viability of Prospect, the steel pail company.
    Milikowsky is the sole buyer of all the steel Prospect
    uses to make pails, and, according to testimony, the
    cost advantage attributable to his steel-buying exper-
    tise is virtually the only reason that Prospect remains
    a viable operation.

On the basis of this evidence, the appellate court concluded
that there was a mitigating factor not adequately taken into
13774               UNITED STATES v. BRAGG
account by the Guidelines, thereby permitting the district
court to exercise its discretion under 18 U.S.C. § 3553(b) and,
departing from the Guidelines, spare the defendant imprison-
ment. The appellate court noted its decision was in conflict
with the result reached in several other circuits, viz. United
States v. Reilly, 33 F.3d 1396, 1424 (3d Cir. 1994); United
States v. Sharapan, 13 F.3d 781, 785 (3d Cir. 1994); United
States v. Rutana, 932 F.2d 1155, 1158 (6th Cir. 1991), cert.
denied, 502 U.S. 907, 112 S.Ct. 300, 116 L.Ed.2d 243 (1991);
United States v. Mogel, 956 F.2d 1555, 1563-64 (11th Cir.),
cert. denied, 506 U.S. 857, 113 S.Ct. 167, 121 L.Ed.2d 115
(1992).

   [2] We need not on this appeal choose between the circuits.
We hold only that the skimpy record before the district court
was inadequate to support or explain its decision and that a
record comparable to that made in Milikowsky may be needed.
On remand, the district court may hear further evidence on
this aspect of the case.

   [3] Second, as to the seriousness of the crime, the district
court observed that it was “old.” It was old because of the
time it took to discover and prosecute, factors not in Bragg’s
favor. Although it was old, it had put in jeopardy the clients
who had relied on Bragg to pay the employment taxes. It was
a tax fraud accomplished by breach of trust.

   [4] Third, the judge’s expression of doubt that deterrence
works in tax cases ignores, without explanation, a statutory
sentencing factor, “afford[ing] adequate deterrence to crimi-
nal conduct.” 18 U.S.C. § 3553(a)(2)(B). The very broad dis-
cretion of district judges in sentencing post-Booker does not
extend to ignoring sentencing factors mandated by statute. See
Gall v. United States, 128 S. Ct. 586, 596-97 & n.6 (2007);
id. at 607-08 & n.3 (Alito, J., dissenting); cf. United States v.
Taylor, 487 U.S. 326, 336-37. Of course the judge had seen
the cases where deterrence had not worked. He had no means
of knowing how often it did work. He apparently had a hunch
                    UNITED STATES v. BRAGG                13775
that it didn’t. The Sentencing Commission, however, has
taken the opposite view, emphasizing that “[b]ecause of the
limited number of criminal tax prosecutions relative to the
estimated incidence of such violations, deterring others from
violating the tax laws is a primary consideration underlying
these guidelines.” U.S. SENTENCING GUIDELINES MANUAL ch. 2,
pt. T, introductory cmt. Congress, in enacting the law, and the
Sentencing Commission, in prescribing prison for tax
offenses, set out a policy. The judge in a particular case may
for particular reasons decide that probation, not prison, will
effectively promote the statutory goal of deterrence. He can-
not shrug off the entire policy because his hunch is otherwise.

  It may be that the judge’s remark was meant as a by-the-
way comment and did not affect his sentencing decision.
Remand will provide a chance for him to explain it.

   [5] Fourth, the court emphasized that Bragg was about to
pay half the tax he owed and would pay the rest within the
year. The court did not mention or calculate what the interest
and civil penalties amounted to. Interest on the $1.2 million
in underpayment was due for seven years. 26 U.S.C.
§ 6601(a). The interest was to be compounded daily. 26
U.S.C. § 6622. In addition, a mandatory penalty was to be
applied in a case of tax fraud. The penalty that “shall be added
to the tax” is “an amount equal to 75 percent of the portion
of the underpayment which is attributable to fraud.” U.S.C.
§ 6663(a). Here the entire tax loss of $1,200,000 was attribut-
able to fraud. The penalty is $900,000. When this amount is
added to the compound interest owed by Bragg, his promise
to pay did not cover half of his obligations, and his own
resources were entirely inadequate to cover what he appears
to owe.

   [6] Bragg informs us that “he is required to pay interest and
penalties as assessed civilly by the IRS” and that this obliga-
tion is “required by both the plea agreement and the judg-
ment.” These liabilities arose from Bragg’s tax fraud. But
13776               UNITED STATES v. BRAGG
Bragg’s payment of them is germane to his criminal sentence.
In considering whether he has done and is doing what he can
do to comply with the obligations arising from his fraud, the
district court should be informed as to these amounts and
what Bragg has done or is doing to pay them.

   What was paid at the time of sentencing showed no virtue
in Bragg. He initiated payments only after he had been caught
by IRS investigators, convicted, and either knew that a restitu-
tion order was about to issue or was already subject to that
order. The payment of about one quarter of what was owed,
if we count civil interest and penalties, was seven years late.

   Payment to the government is not like making restitutions
to a wronged individual. For the government as tax collector,
the amount was comparatively minor. The government’s
interest was in assuring obedience to the law, hence the need
for a message. As for “just punishment” — a factor focused
on by the court — it is not “just punishment” to be made to
do today what you should have done seven years ago.

   Moreover, Bragg was able to pay over $1.2 million in resti-
tution within twelve months of sentencing only because he
had ready access to family funds. Allowing a district court to
rely on prompt satisfaction of a substantial monetary sanction
to impose a non-custodial sentence is backwards as a matter
of policy, as the Eighth Circuit has noted: “If district courts
were free to reduce prison sentences as the amount of tax loss
rises, willful tax evaders would benefit as the amount of the
government’s tax loss rises, i.e., the lesson would be the more
you cheat, the more lenient your sentence.” United States v.
Ture, 450 F.3d 352, 359 (8th Cir. 2006). Rewarding defen-
dants who are able to make restitution in large lump sums also
perpetuates class and wealth distinctions that have no place in
criminal sentencing. See U.S. SENTENCING GUIDELINES MANUAL
§ 5H1.10 (“[Race, sex, national origin, creed, religion, and
socio-economic status] are not relevant in the determination
of a sentence.”).
                    UNITED STATES v. BRAGG                 13777
   [7] The discretion enjoyed by the district judge does not
eliminate the court of appeals from review of the sentence he
has chosen. The district court had the duty to insure that the
justification for its decision was “sufficiently compelling to
support the degree of the variance.” Gall, 128 S. Ct. at 597.
The district court has committed procedural error. Id.

  The parties agree that the text of the judgment is erroneous.
The judgment should be reformed to indicate that a fine was
not waived. The district court should so correct the record.

  [8] The sentence imposed by the district court is
VACATED and the case REMANDED for proceedings in
accordance with this opinion.



N. RANDY SMITH, Circuit Judge, dissenting:

   I respectfully dissent. The district judge adequately
explained the sentence, did not consider any inappropriate
factors, and did not abuse his discretion.

   As our en banc decision in United States v. Whitehead
instructs, recent Supreme Court’s decisions have “empowered
district courts, not appellate courts . . . [and] breathe[d] life
into the authority of district court judges to engage in individ-
ualized sentencing.” 532 F.3d 991, 993 (9th Cir. 2008) (en
banc ) (quoting United States v. Vonner, 516 F.3d 382, 392
(6th Cir. 2008)). “Even if we are certain that we would have
imposed a different sentence had we worn the district judge’s
robe, we can’t reverse on that basis.” Id. at 993 (citing Gall
v. United States, ___ U.S. ___, 128 S. Ct. 586, 597 (2007)).

   In my view, the majority opinion vacates a sentence with
which it simply disagrees. Although the majority holds only
that the district judge failed to adequately explain the sen-
tence, its reasoning shows that it has failed to follow the “sage
13778               UNITED STATES v. BRAGG
advice” of precedent that should bind our review. It has also
confused the traditional “role of an appellate court,” which is
not to “substitute its judgment for that of the sentencing court
as to the appropriateness of a particular sentence.” Koon v.
United States., 519 U.S. 81, 97 (9th Cir. 1996) (quoting Wil-
liams v. United States, 503 U.S. 193, 205 (1992) (internal
citations omitted)).

I.   The District Court Adequately Explained the
     Sentence.

   The record sufficiently shows that the district judge consid-
ered the parties’ arguments and had a reasoned basis for the
sentence he imposed. Generally, “the judge must explain why
he imposes a sentence outside the Guidelines.” United States
v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (citing Rita v.
United States, 551 U.S. 338, 127 S. Ct. 2456, 2468 (2007);
Gall, 128 S. Ct. at 594 (indicating that a district judge “must
explain his conclusion that an unusually lenient or an unusu-
ally harsh sentence is appropriate in a particular case with suf-
ficient justifications”)). However, “adequate explanation in
some cases may also be inferred from the PSR or the record
as a whole.” Carty, 520 F.3d at 992. Therefore, to determine
whether the judge adequately explained the sentence, we must
view the record as a whole.

   The record confirms that the district judge explicitly stated
why he gave Bragg a below the Guidelines sentence. The
judge specifically referenced consideration of (1) Bragg’s
honorable military service; (2) Bragg’s conduct since 2000
(including his community service, his clean record, his educa-
tional achievements, and his alcohol rehabilitation), (3) the
fact that the crime was a one-year problem; (4) that the tax
liability was for an Arizona corporation that no longer exists;
and (5) and the interests of justice in not putting Bragg in
prison for events that occurred many years earlier. He also
expressly considered Bragg’s vital role in continuing a busi-
ness that employs over 700 individuals. The judge also cred-
                    UNITED STATES v. BRAGG                 13779
ited Bragg’s restitution payments. Additionally, the judge
stated that he considered the parties’ sentencing memoranda,
reflected on Bragg’s circumstances, and considered the
§ 3553(a) factors and Gall.

   The district court is not required to “tick off each of the
§ 3553(a) factors to show it has considered them.” Carty, 520
F.3d at 992. “Nor need the district court articulate in a vac-
uum how each § 3553(a) factor influences its determination of
an appropriate sentence.” Id. The record is sufficient, and we
can be “satisf[ied] . . . that [the sentencing judge] has consid-
ered the parties’ arguments and has a reasoned basis for exer-
cising his own legal decisionmaking authority. Rita, 127 S.
Ct. at 2468 (citing United States v. Taylor, 487 U.S. 326,
336-337 (1988)). Therefore, I would affirm the district court
as having sufficiently explained the sentence.

II.   The District Court Did Not Consider Inadmissible
      Sentencing Factors.

  The majority concludes that the district judge committed
procedural error, because his explanation of the below-
Guidelines variance included discussion of several “question-
able” items. Majority Op. 13722. I disagree.

   First, the opinion faults the district judge for considering
evidence that Bragg had a vital role in managing Brownstone.
“Significant procedural” error can include “selecting a sen-
tence based on clearly erroneous facts.” Gall, 128 S. Ct. at
597 (emphasis added). However, to the extent the district
court selected a sentence on evidence of Bragg’s vital impor-
tance to Brownstone, such evidence is not clearly erroneous.

   Our review under the clearly erroneous standard is signifi-
cantly deferential, requiring a “definite and firm conviction
that a mistake has been committed.” See Easley v. Cromartie,
532 U.S. 234, 242 (2001). If the district court’s account of the
evidence is plausible in light of the entire record, we may not
13780               UNITED STATES v. BRAGG
reverse, even if we would have weighed the evidence differ-
ently. See Husain v. Olympic Airways, 316 F.3d 829, 835 (9th
Cir. 2002), aff’d, 540 U.S. 644 (2004). “Where there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” United States v.
Elliott, 322 F.3d 710, 714 (9th Cir. 2003); see also Hayes v.
Woodford, 301 F.3d 1054, 1067 n.8 (9th Cir. 2002) (internal
quotation omitted) (“To be clearly erroneous, a decision must
strike us as more than just maybe or probably wrong; it must
. . . strike us as wrong with the force of a five-week-old unre-
frigerated dead fish.”).

   There is evidence in the record to support the district
court’s finding that Bragg was indispensable to his company.
The majority acknowledges the letter from Bragg’s father
(indicating Bragg’s indispensability), but then concludes that
“[t]he record, in fact, is far from clear as to Bragg’s indispens-
ability in any business.” Majority Op. at 13773. Bragg also
testified about his role in the business, explaining that if he
were incarcerated, his father may have to sell the company.
This evidence was unrebutted by the Government. The major-
ity suggests that more evidence (perhaps financial records) is
needed to prove Bragg’s indispensability. However, the stan-
dard for procedural error (based on erroneous facts) is not
whether the record is clear as to the asserted fact, but whether
the facts relied on by the district court are clearly erroneous.
See Gall, 128 S. Ct. at 597. Even though Bragg spoke about
“the companies [his] Dad runs,” he also told the court about
“[t]he current companies that my dad owns that I’m running.”
In addition to the letter from Bragg’s father, Bragg’s state-
ments at sentencing and Bragg’s sentencing memorandum
also assert Bragg’s critical importance to his company’s con-
tinuing operations. Although we may question whether Bragg
was truly indispensable, the district court’s reliance on evi-
dence (that Bragg ran and was indispensable to Brownstone)
is not procedural error. It is not clearly erroneous, and, there-
fore, not an “inadmissible” or improper factor.
                     UNITED STATES v. BRAGG                 13781
   Second, the majority faults the district court for considering
that the offense of conviction was “old.” The fact that Bragg’s
tax crime was an isolated incident (occurring many years ago)
is at least relevant and cannot be an improper factor for the
district court to consider in imposing a sentence.

   Third, the majority makes too much of the district judge’s
statements about deterrence in tax cases. Contrary to the
majority’s assertion, the district judge’s comments do not
“shrug off the entire policy [of deterrence].” Majority Op. at
13775. Rather, in the context of the sentence Bragg received,
the district judge essentially expressed an opinion that a cus-
todial sentence in a tax case does not necessarily serve the
interest of deterrence any greater than probation, fines and
restitution do. This does not mean that he discounted deter-
rence as a factor in selecting a sentence, but rather that deter-
rence can be sufficiently achieved with probation, fines, and
restitution. After all, fines, restitution, and probation (with its
attending conditions and consequences) may, in some cases,
be “sufficient, but not greater than necessary to reflect the
seriousness of the offense, promote respect for the law, and
provide just punishment; to afford adequate deterrence; to
protect the public; and to provide the defendant with needed
educational or vocational training, medical care, or other cor-
rectional treatment.” See Carty, 520 F.3d at 991 (9th Cir.
2008) (citing 18 U.S.C. § 3553(a) and (a)(2)) (internal quota-
tion marks omitted).

   Depending on the circumstances, probation may be more
effective at balancing the competing objectives of sentencing.
Probation generally places significant restrictions on the lib-
erty of probationers. With appropriate conditions, probation
empowers the court to ensure rehabilitation, full restitution to
victims, payment of fines, protection of the public, and com-
pliance with the law. If the defendant falters or fails to com-
ply, the violation of probation gives the judge power to mete
out greater punishment, including incarceration. As the major-
ity notes, “Probation is not leniency.” Majority Op. at 13772.
13782               UNITED STATES v. BRAGG
It is a “substantial restriction of freedom” that “can have a
significant impact on both th[e] person and society.” Gall,
128 S. Ct. at 593-94, 596 & n.4 (citations omitted). Not only
can probation be sufficient punishment in some cases, but
“§ 3553(a)(3) directs the judge to consider sentences other
than imprisonment.” See Gall, 128 S. Ct. at 602. To the extent
that the district judge expressed a doubtful opinion on the effi-
cacy of custodial sentences in deterring tax crimes, such an
expression does not mean he completely disregarded the inter-
est of deterrence and does not amount to reversible error. The
record is sufficiently clear, and there is simply no need to
remand this case for the district judge to explain his expres-
sions on deterrence in tax cases.

   Fourth, the majority faults the district judge for considering
Bragg’s payment of restitution as a reason for imposing a
non-custodial sentence. Yet, § 3553(a)(7) expressly directs
the district court to consider “the need to provide restitution
to any victims of the offense.” Therefore, the district judge’s
consideration of restitution cannot be procedural error.

   The majority also appears to conclude that the district court
should not have considered Bragg’s restitution payment,
because it was insignificant in light of the possible civil penal-
ties the IRS might impose under the Internal Revenue Code.
I do not challenge the majority’s computation of the potential
civil penalties Bragg may be required to pay. But the possibil-
ity or even probability that the IRS can or will impose future
civil penalties should not weigh in our analysis. Our review
should turn only on whether the district court violated the law
in considering restitution as a factor, when imposing the sen-
tence, not on our own assessment of whether Bragg’s restitu-
tion was significant enough in comparison to the total civil
penalties the IRS could impose.

   The majority also reweighs the restitutionary interest
against the government’s interest in “assuring obedience to
the law.” Majority Op. at 13776. It also concludes that
                    UNITED STATES v. BRAGG                 13783
Bragg’s restitution payment was not “just punishment.”
Majority Op. at 13776. The majority discounts that Bragg was
also placed on probation and ordered to pay a fine in addition
to the criminal restitution. More importantly, however, the
majority forgets our role as an appellate court. While we may
disagree with the sentence, “it is not for [us] to decide de novo
whether the justification for a variance is sufficient or the sen-
tence reasonable. On abuse-of-discretion review, [we] should
[give] due deference to the District Court’s reasoned and rea-
sonable decision that the § 3553(a) factors, on the whole, jus-
tif[y] the sentence.” Gall, 128 S. Ct. at 602.

   Although the parties agree that the judgment erroneously
states that the district court waived any fine, this error is
purely clerical and harmless. The record is clear that the dis-
trict court ordered Bragg to pay a $20,000 fine, which Bragg
has already paid and which he does not challenge. I see no
reason to remand the judgement for reformation of an unchal-
lenged clerical error.
