 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued January 13, 2015                        May 15, 2015

                        No. 12-3022

                UNITED STATES OF AMERICA,
                        APPELLEE

                             v.

                       JOHN BIGLEY,
                        APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:11-cr-00282-1)


     Jonathan S. Jeffress, Assistant Federal Public Defender,
argued the cause for appellant. With him on the briefs was
A.J. Kramer, Federal Public Defender.

    Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman and David
B. Kent, Assistant U.S. Attorneys.

    Before: GARLAND, Chief Judge, BROWN, Circuit Judge,
and SENTELLE, Senior Circuit Judge.
                              2
    Opinion filed for the Court PER CURIAM. Concurring
Opinion filed by Circuit Judge BROWN.

     PER CURIAM: Before United States v. Booker, 543 U.S.
220 (2005), rendered the U.S. Sentencing Guidelines
advisory, we forbade district courts from relying on
sentencing manipulation as a basis for mitigation. See United
States v. Walls, 70 F.3d 1323, 1329–30 (D.C. Cir. 1995). But
Booker and its offspring fundamentally changed the
sentencing calculus, requiring courts to now consider any
mitigation argument related to the sentencing factors
contained in 18 U.S.C. § 3553(a) when imposing a sentence
within the statutory range of punishment. See Pepper v.
United States, 562 U.S. 476, 131 S. Ct. 1229, 1241–48
(2011); Kimbrough v. United States, 552 U.S. 85, 101–02
(2007); Rita v. United States, 551 U.S. 338, 357 (2007). A
sentencing court, post-Booker, must consider nonfrivolous
arguments for mitigation, even if those arguments were
previously prohibited under the mandatory guidelines regime.
Because the district court failed to consider a nonfrivolous
claim of sentencing manipulation when it pronounced its
sentence, we vacate the sentence and remand.

                               I

    A Metropolitan Police undercover operative, Detective
Timothy Palchak, engaged in a private online chat with John
Bigley, in an Internet chat room frequented by individuals
with a sexual interest in prepubescent children. Bigley’s
profile stated he was 75 years old and living in New Castle,
Pennsylvania.

    Their conversations were sordid and graphic; and the
prurient details need not be repeated here. Palchak pretended
to have a sexual relationship with his girlfriend’s 12-year-old
                               3
daughter, “Christi.” Bigley was “very interested” in traveling
to Washington D.C. to get sexual access to Christi and
expressed interest when Palchak said he had nude
photographs of Christi. Palchak raised the idea of Bigley
taking photographs of Christi during his visit and, in a later
conversation, Palchak advised Bigley to bring a digital
camera on his trip.

     When Bigley arrived in Washington D.C., the police
arrested him. Officers discovered a camera in his car, but after
conducting a search of his residence, they found no child
pornography.

     Bigley was charged with one count of interstate travel
with intent to engage in illicit sexual conduct with a minor.
See 18 U.S.C. § 2423(b). He pled guilty. When the probation
office calculated his advisory sentencing guideline range, it
employed the Section 2G1.3(c)(1) cross-reference guideline
provision, which requires the application of Section 2G2.1
when an offense involves “causing, transporting, permitting,
or offering . . . a minor to engage in sexually explicit conduct
for the purpose of producing a visual depiction of such
conduct.” U.S.S.G. § 2G1.3(c)(1). By applying Section
2G2.1, Bigley’s base offense level increased from 24 to 32,
which, when the other guideline calculations were made,
boosted his sentence guideline range from 46 to 57 months to
135 to 168 months of imprisonment. See U.S.S.G. ch. 5, pt. A
(sentencing table).

     At sentencing, Bigley argued for a variance from the
advisory guideline range. Bigley claimed Palchak purposely
introduced the camera into their conversations to manipulate
and increase Bigley’s sentence. Because a much lower
offense level would have applied without the application of
Section 2G2.1, Bigley argued the sentencing factors contained
                               4
in 18 U.S.C. § 3553(a) supported a sentence of either 24 or 36
months imprisonment.

     The district court imposed a sentence of 84 months,
stating:

   The Court imposes this sentence which is a departure
   from the guidelines, having considered all of the factors
   under 3553(A), but in light of the seriousness of the
   offense, the Court believes that this sentence is the
   appropriate one under the guidelines, taking into
   account your age and the lack of any prior criminal
   record, but nonetheless this is a very serious offense
   that the Court has to take as seriously as Congress has
   mandated.

Sentencing Transcripts at 15–16, United States v. Bigley, No.
11-00282 (D.D.C. July 18, 2012) (“Sent. Tr.”). The court did
not address Bigley’s sentencing manipulation argument. Nor
did Bigley object to the court’s statement of reasons.

                               II

    Bigley now claims the district court committed
procedural error by failing to address his nonfrivolous
sentencing manipulation argument when imposing the
sentence.

     When a defendant fails to timely raise a procedural
reasonableness objection at sentencing, this Court reviews for
plain error. See United States v. Ransom, 756 F.3d 770, 773
(D.C. Cir. 2014) (“Ransom acknowledges that at sentencing
he did not object to his sentence[ ] . . . we review the district
court’s sentencing procedures for plain error.”); United States
v. Locke, 664 F.3d 353, 357 (D.C. Cir. 2011) (“Because
                               5
Locke did not challenge the adequacy of the district court’s
statement of reasons below, we review her claim for plain
error.”).

     Bigley nonetheless contends de novo review, rather than
the more demanding plain error standard, applies because
there was no opportunity to object to the district court’s
procedural error. We need not decide whether Bigley had the
requisite opportunity to object because, as we explain below,
the plain error standard is met in any event.

                              III

     The crux of Bigley’s sentencing claim is that even if the
more punitive guideline provision for child pornography
applied, the court should have imposed a “non-guideline
sentence” and issued a downward variance from the guideline
range. App. 34. Bigley claims the government purposely
manipulated his sentence by inserting a camera into the
discussion. To bolster his claim that the real offense conduct
did not involve child pornography, Bigley noted the
exhaustive search of his residence and camera revealed no
images of child pornography—providing the inference that he
was not predisposed to committing a child pornography
offense had Palchak not introduced the topic into their
discussion. This argument went to the nature of the offense, a
relevant sentencing factor, see 18 U.S.C. § 3553(a), and was
nonfrivolous.

     When a district court confronts a nonfrivolous argument
for a sentence below the relevant guideline range, it must
consider it. See Locke, 664 F.3d at 357 (holding Section
3553(c) “requires that the court provide a ‘reasoned basis’ for
its decision and consider all ‘nonfrivolous reasons’ asserted
for an alternative sentence”) (citing Rita, 551 U.S. at 356–57).
                               6
“In fact, so long as the judge provides a ‘reasoned basis for
exercising his own legal decisionmaking authority,’ we
generally presume that he adequately considered the
arguments and will uphold the sentence if it is otherwise
reasonable.” Locke, 664 F.3d at 358. But, here, the
presumption is rebutted by the district court’s silence in the
face of a sentencing manipulation argument for mitigation,
along with the government’s concession that the court may
have     thought—consistent     with     the    government’s
assumption—it could not reduce Bigley’s sentence based on
sentencing manipulation. Oral Arg. Recording 19:30-21:15.
Thus, the court’s failure to consider Bigley’s nonfrivolous
sentencing argument was error.

     The government contends United States v. Walls, 70 F.3d
1323 (D.C. Cir. 1995), and its progeny stand for the
proposition that a sentencing manipulation argument may
never “be a basis for a reduced sentence in this jurisdiction.”
Br. of Appellee at 24, United States v. Bigley, No. 12-3022
(D.C. Cir. July 9, 2014). As an initial matter, Walls and its ilk
are inapposite. The two defendants in Walls brought a due
process sentencing entrapment claim after receiving
mandatory life sentences pursuant to statute, not the
sentencing guidelines. 70 F.3d at 1325. And the district court
in United States v. Shepherd sentenced the defendant below
the applicable statutory mandatory minimum based on
sentencing manipulation. 102 F.3d 558, 566 (D.C. Cir. 1996).
In both cases, the Court held defendants could bring due
process sentencing manipulation claims to challenge only
their conviction, not their sentence. Walls, 70 F.3d at 1329;
Shepherd, 102 F.3d at 566–67. But bringing a constitutional
challenge seeking imposition of a sentence outside the
statutory range is far different than a request for a judge to
consider varying the sentence within the appropriate statutory
range. The former requires a defendant to prove a
                               7
constitutional violation; the latter merely requires a defendant
to request mitigation of his sentence based on sentencing
factors contained within Section 3553(a). See Gall v. United
States, 552 U.S. 38, 63–64 (2007).

     Our decisions in United States v. Hinds, 329 F.3d 184
(D.C. Cir. 2003), and United States v. Glover, 153 F.3d 749
(D.C. Cir. 1998), are also distinguishable. In Hinds, the
defendant claimed the sentencing court erred in failing to
reduce his base offense level under the guidelines due to
government sentencing manipulation, and we concluded such
arguments were not a proper legal basis to challenge a
sentence. 329 F.3d at 190. But here, by contrast, Bigley
requested a downward variance after acknowledging the
correctly calculated guideline range. In Glover, the Court
again rejected a claim of sentencing entrapment. But unlike
Walls and Shepherd, the Court simply rejected the claim on
the merits, finding no evidence the government “orchestrated”
a crime carrying a stiffer penalty. 153 F.3d at 756–57.

     United States v. Webb, 134 F.3d 403 (D.C. Cir. 1998), is
closer to the mark. The district court there departed downward
from the guideline range due to an undercover police officer
making multiple drug buys from the defendant before finally
arresting him. We noted—despite the district court’s
reluctance to use the label—that the departure was based on
sentencing manipulation, and we reaffirmed the guidelines
provide no basis for such a departure. Id. at 409.

     As to the government’s larger point—sentencing
manipulation can never be a basis for a reduced sentence in
this jurisdiction—the Walls line of decisions is incompatible
with the Supreme Court’s post-Booker precedents. See
Pepper, 131 S. Ct. at 1241–48 (holding that forbidden pre-
Booker departure for post-conviction rehabilitation could be
                               8
considered as a factor justifying a variance); United States v.
Beltran, 571 F.3d 1013, 1019 (10th Cir. 2009) (“However,
after Booker, a claim of sentencing factor manipulation may
also be raised as a request for a variance based on § 3553(a)’s
requirement that a district court consider the nature and
circumstances of the offense.”). Sentencing courts, post-
Booker, can issue a variance from the advisory guidelines
range without the need for a pre-Booker departure, and can
issue a variance on the same grounds that were previously
forbidden for departures. See Pepper, 131 S. Ct. at 1241–42
(holding there is no “basis for the courts to invent a blanket
prohibition against considering certain types of evidence at
sentencing”). If the district court relied on the Walls line of
cases in denying Bigley’s sentencing manipulation argument,
as the government agrees the court “probably” did, Oral Arg.
Recording 19:30-21:15, that too was error.

    By failing to consider the defendant’s nonfrivolous
mitigation argument, the district court committed plain error.
The Supreme Court’s post-Booker decisions required
sentencing courts to consider nonfrivolous mitigation
arguments at sentencing; Walls does not seem to apply to
Bigley’s request for a variance from the guideline range based
on sentencing manipulation; and even if the Walls line of
decisions is deemed applicable, they are incompatible with
the post-Booker advisory guideline regime. See In re Sealed
Case, 573 F.3d 844, 851 (D.C. Cir. 2009) (error is plain “if it
contradicts . . . Supreme Court precedent”).

     In the sentencing context, the plain error standard further
requires only that the defendant “show a reasonable
likelihood” that the sentencing court’s plain error “affected
his sentence.” In re Sealed Case, 573 F.3d at 852 (quoting
United States v. Saro, 24 F.3d 283, 288 (D.C. Cir. 1994)); see
id. at 853. Here, that burden is met by the government’s own
                               9
concession. At oral argument, government counsel conceded
the judge “probably” thought—just as the prosecutor did—the
court lacked authority to vary downward from the Guidelines
based on Bigley’s sentencing entrapment argument. See Oral
Arg. Recording 19:30-21:00. The government, moreover,
agreed the entire case came down to a question of whether a
judge can consider sentencing entrapment post-Booker, id. at
21:00-21:20, and if this Court concluded the government’s
view on that question was wrong, then the defendant had been
prejudiced, id. at 1930-21:00, 33:00-33:50. We have so
concluded.

     In order to meet plain error review, a defendant must also
show the error “seriously affects the fairness, integrity, or
public reputation of judicial proceedings,” United States v.
Olano, 507 U.S. 725, 736 (1993). We said, in In re Sealed
Case, “[a] district judge must adequately explain the chosen
sentence to promote the perception of fair sentencing,” which
“is important not only for the defendant but also for the public
to learn why the defendant received a particular sentence.”
527 F.3d at 193. When a judge fails to address a defendant’s
nonfrivolous mitigation claim based on a 18 U.S.C. § 3553(a)
sentencing factor, a reviewing court and the public cannot
adequately evaluate the judge’s sentence selection. Moreover,
where, as here, a district court may have thought it was
prohibited, as a matter of law, from considering a claim for
mitigation, the error seriously affects the public reputation of
judicial proceedings. See United States v. Terrell, 696 F.3d
1257, 1263–64 (D.C. Cir. 2012) (reversing for plain error a
district court’s mistake on the scope of its sentencing
discretion).

    Because this case meets the standard for plain error, we
vacate defendant’s sentence and remand for further
proceedings consistent with this opinion. In doing so, we
                              10
emphasize that this disposition in no way requires the district
court to shorten the sentence on remand. Rather, the district
court remains free to resentence the defendant appropriately.

                              IV

    For the foregoing reasons, we vacate Bigley’s sentence
and remand for resentencing in accordance with this opinion.

                                                   So ordered.
     BROWN, Circuit Judge, concurring: After the Supreme
Court declared the Sentencing Guidelines advisory in United
States v. Booker, 543 U.S. 220 (2005), and required a very
deferential form of reasonableness review, see Gall v. United
States, 552 U.S. 38, 51–53 (2007), there is very little left for
an appellate court to do in reviewing federal sentences. That
said, we must still ensure a sentencing judge considered all of
the 18 U.S.C. § 3553(a) sentencing factors, including
defendants’ nonfrivolous arguments for mitigation directed at
those factors. As a practical matter, effective review depends
on the trial judge’s transparency in addressing his
considerations—however lightly—on the record or in written
orders.

     A majority of circuits require judges to address a
defendant’s nonfrivolous arguments for a sentence below the
advisory Sentencing Guideline range. E.g., United States v.
Poulin, 745 F.3d 796, 801 (7th Cir. 2014) (holding the
sentencing judge must “consider” a nonfrivolous sentencing
argument and “provide reasons explaining his acceptance or
rejection of it”); United States v. Corsey, 723 F.3d 366, 376–
77 (2d Cir. 2013) (reversing for, inter alia, the district court’s
failure to address defendant’s nonfrivolous argument); United
States v. Trujillo, 713 F.3d 1003, 1011 (9th Cir. 2013)
(“Trujillo presented nonfrivolous arguments, and the district
court did not at all explain the reasons for rejecting them; this
was legal error.”); United States v. Lynn, 592 F.3d 572, 581
(4th Cir. 2010) (holding the district court failed to address the
defendant’s “nonfrivolous reasons for imposing a different
sentence”); United States v. Mondragon-Santiago, 564 F.3d
357, 362 (5th Cir. 2009) (holding the district court
inadequately addressed defendant’s argument for a downward
departure from the Guideline range); United States v. Sevilla,
541 F.3d 226, 232 (3d Cir. 2008), abrogated on other grounds
by United States v. Flores-Mejia, 759 F.3d 253 (3d Cir. 2014)
(“[A] rote statement of the § 3553(a) factors should not
suffice if at sentencing either the defendant or the prosecution
                               2
properly raises a ground of recognized legal merit . . . and the
court fails to address it”); United States v. Peters, 512 F.3d
787, 788 (6th Cir. 2008) (reversing because “the District
Court did not address the defendant’s ‘time-served’
argument”).

     “Sentencing is a responsibility heavy enough without our
adding formulaic or ritualized burdens.” United States v.
Cavera, 550 F.3d 180, 193 (2d Cir. 2008). I am not indifferent
to concerns about saddling busy district courts with more
procedural loads and I appreciate this court’s reluctance. But
the burden of providing a brief explanation is small and the
advantages great. “Most obviously, [an explanation]
requirement helps to ensure that district courts actually
consider the statutory factors and reach reasoned decisions.”
Id. at 193; see also In re Sealed Case, 527 F.3d 188, 192
(D.C. Cir. 2008) (“The requirements that a sentencing judge
provide a specific reason for a departure and that he commit
that reason to writing work together to ensure a sentence is
well-considered.”). It also promotes the “perception of fair
sentencing,” Gall, 552 U.S. at 50, and “helps the sentencing
process evolve by informing the ongoing work of the
Sentencing Commission,” Cavera, 550 F.3d at 193. When a
sentencing court responds to a defendant’s arguments, it
“communicates a message of respect for defendants,
strengthening what social psychologists call ‘procedural
justice effects,’ thereby advancing fundamental purposes of
the Sentencing Reform Act.” See Michael M. O’Hear,
Explaining Sentences, 36 FLA. ST. U. L. REV. 459, 472 (2009).
The requirement also assures an adequate record with which
we can conduct “meaningful appellate review.” Gall, 552
U.S. at 50. 1 Consequently, I would join the majority of

1
  Requiring a sentencing court to both consider and address a
defendant’s argument for mitigation also can affect outcomes. See
                                3
circuits in holding district courts should address a defendant’s
nonfrivolous argument for a variance from the Guideline
range.

     The court relies on the government’s concession that the
district court “probably” believed it was prohibited by our
case law from considering sentencing manipulation as a basis
for a variance from the advisory Guideline range. Maj. Op. at
6 (citing Oral Arg. Recording 19:30-21:15). But we are
required to “conduct an independent review” of a legal issue,
despite the government’s concession on appeal. United States
v. Russell, 600 F.3d 631, 636 (D.C. Cir. 2010). More
importantly, although the government claimed the district
court probably believed it was prohibited by United States v.
Walls, 70 F.3d 1323 (D.C. Cir. 1995), and its progeny, from
considering Bigley’s sentencing manipulation argument, the
government never presented the Walls argument to the district
court—either in its sentencing memorandum or during the
sentencing hearing. Thus, it seems odd to find, as the court
did, that the district court erred in failing to consider Bigley’s
sentencing manipulation claim based on an argument the
government never presented. I would rather have the district
court’s explanation than the government’s dubious
concession.

    I concur in the judgment.


Jennifer Niles Coffin, Where Procedure Meets Substance: Making
the Most of the Need for Adequate Explanation in Federal
Sentencing, CHAMPION, Mar. 2012, at 36 (“When courts of appeals
insist that the district courts fully address the evidence and
arguments presented by the parties regarding the appropriate
sentence, and then explain their decision to accept or reject those
arguments, actual outcomes are different on remand, sometimes
significantly so.”).
