                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 11a0024n.06

                                           No. 09-5685                                  FILED
                                                                                     Jan 13, 2011
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )    ON APPEAL FROM THE UNITED
                                                       )    STATES DISTRICT COURT FOR
                                                       )    THE EASTERN DISTRICT OF
DOUGLAS CHASTAIN,                                      )    TENNESSEE
                                                       )
       Defendant-Appellant.                            )


Before: SILER, CLAY, and GIBBONS, Circuit Judges.

       SILER, Circuit Judge. Douglas Chastain pleaded guilty to possession of ammunition by a

convicted felon and was sentenced to sixty-three months’ imprisonment. He now appeals his

sentence, in particular, the procedural reasonableness of it. For the following reasons, we AFFIRM.

                                        BACKGROUND

       At Chastain’s sentencing, the district court reviewed a presentence report recommending a

sentence between 51 and 63 months’ imprisonment under the Guidelines, based upon Chastain’s

offense level of 17 and his criminal history score of VI. After acknowledging that it had to make an

individualized assessment applying the sentencing factors of 18 U.S.C. § 3553(a), the district court

asked Chastain to suggest an appropriate sentence. Chastain and his counsel argued that Chastain’s

addiction to alcohol should be a pertinent consideration for the district court in determining

Chastain’s sentence, but did not suggest a specific term. The district court responded to Chastain’s
No. 09-5685
United States v. Chastain

statements by admonishing him to avoid guns in the future.             Considering “the facts and

circumstances of the offense, the background and history of the defendant, [and] the factors stated

in 18 U.S.C. Section 3553(a),” the district court sentenced Chastain to sixty-three months’

imprisonment and 500 hours of substance abuse treatment. Chastain refused to object to this

sentence or its explanation when asked by the district court.

       Chastain now appeals his sentence because, he argues, the district court failed to make an

individual assessment applying the sentencing factors of 18 U.S.C. § 3553(a) and failed to

adequately explain its reasoning when sentencing him.

                                          DISCUSSION

A. Standard of Review

       We review a defendant’s sentence for both procedural and substantive reasonableness, and

determine whether such a sentence was reasonable under an abuse of discretion standard of review.

United States v. Carter, 510 F.3d 593, 600 (6th Cir. 2007) (citing Gall v. United States, 552 U.S. 38,

46 (2007)). Because Chastain raised no objection to the district court’s sentence when given an

opportunity, we must instead review Chastain’s appeal only for plain error. See United States v.

Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (citing United States v. Bostic, 371 F.3d 865,

872-73 (6th Cir. 2004)).

B. The Procedural Reasonableness of Chastain’s Sentence

       Chastain argues that his sentence was procedurally unreasonable because the district court

failed to consider the § 3553(a) sentencing factors and failed to adequately explain its chosen



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sentence.1 At sentencing, a district court must consider the appropriate range suggested by the

Guidelines, give the parties an “opportunity to argue for whatever sentence they deem is

appropriate,” consider the §3553(a) factors in making an “individualized assessment based on the

facts presented,” and “adequately explain the chosen sentence to allow for meaningful appellate

review and to promote the perception of fair sentencing.” United States v. Bolds, 511 F.3d 568, 579-

80 (6th Cir. 2007).

        In explaining its application of the § 3553(a) sentencing factors, there is no requirement that

the district court “engage in a ‘ritualistic incantation to establish consideration of a legal issue’” or

that the court “make specific findings related to each of the factors considered.” Id. at 580 (quoting

United States v. McClellan, 164 F.3d 308, 310 (6th Cir. 1999)). Although a district court must give

“the reasons” for its sentence, it is not required to “give the reasons for rejecting any and all

arguments by the parties for alternative sentences,” nor to give the “specific reason” for a within-

Guidelines sentence. Vonner, 516 F.3d at 387. The ultimate question, then, is “whether ‘the record

makes clear that the sentencing judge listened to each argument,’ ‘considered the supporting

evidence,’ was ‘fully aware’ of the defendant's circumstances and took ‘them into account’ in

sentencing him.” Id. (quoting Rita v. United States, 551 U.S. 338, 358(2007)).

        Our decision in Vonner provides an apt comparison. In Vonner, after listening to the

defendant’s arguments for a downward variance, the district court thanked the defendant for his



        1
         Because this is Chastain’s only argument supporting the reversal of his sentence on appeal,
we will not consider the substantive reasonableness of Chastain’s within-Guidelines sentence of
sixty-three months’ imprisonment.

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United States v. Chastain

apology and “‘encourage[d]’ him to continue to cooperate with the government and to dedicate his

prison time to learning ‘certain life skills and life-styles that will be of benefit to [him] when [his]

period of incarceration is over.’” Vonner, 516 F.3d at 384. The district court then stated that,

“consider[ing] the nature and circumstances of the offense, the history and characteristics of the

defendant, and the advisory Guidelines range, as well as the other factors listed in 18 [U.S.C. §]

3553(a),” the defendant’s appropriate, within-Guidelines sentence was 117 months’ imprisonment.

Id. And, like Chastain, the defendant in Vonner failed to object to his sentence or its articulation

when given the opportunity at his sentencing hearing. Id. As a result, in Vonner, we did not address

whether the district court erred in its articulation of the defendant’s sentence. Instead, we asked only

whether any potential error was “plain.” Id. at 387.

        While the district court’s explanation of the defendant’s sentence in Vonner was not “ideal,”

we held that it was not plainly erroneous. Id. at 386-388. The district court mentioned the directly

relevant § 3553(a) factors, i.e., the nature and circumstances of the offense, and the history and

characteristics of the defendant. Id. at 388. By encouraging the defendant to continue his

cooperation with the government and to learn useful skills, the district court demonstrated that it

understood the defendant’s arguments for mitigation. Vonner, 516 F.3d at 388. These arguments

by the defendant were “conceptually straightforward,” and nothing in the record or the context of the

hearing suggested that the court did not listen to, consider and understand every argument that the

defendant made. Id. (citing Rita, 551 U.S. at 358).

        By contrast, in United States v. Wallace, we found plain error where the district court failed

to acknowledge the defendant’s argument that her sentence was disparately longer than that of her

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United States v. Chastain

co-conspirator’s. 597 F.3d 794, 803-04 (6th Cir. 2010). At the sentencing hearing, the government

provided “facially legitimate reasons” why this difference in sentences was appropriate. Id. at 804.

But, even under a plain error standard of review and even after our earlier decision in Vonner, we

found the district court’s procedures in Wallace to be worthy of remand. While the district court in

Vonner was “extremely brief in [its] analysis,” it did at least “consider or show an understanding of

all of the defendant’s arguments for leniency,” if only “in a cursory manner.” Id. The district court

in Wallace, however, “was silent on the sentencing disparity issue and did not even specifically

mention any of the § 3553(a) factors.” Id.

       Although both courts were certainly brief in their sentencing decisions, here the district

court’s articulation of Chastain’s sentence appears closer to that in Vonner than in Wallace. The

district court considered the advisory Guideline range and invited Chastain to suggest his appropriate

sentence. It explicitly stated that it considered the § 3553(a) sentencing factors, namely Chastain’s

history and background and the circumstances of his offense, and provided them as reasons for

Chastain’s sentence. Finally, the district court addressed Chastain’s alcohol abuse by recommending

that he receive 500 hours of substance abuse treatment and dismissed its mitigative effect by refusing

to decrease Chastain’s sentence and admonishing him to avoid future contact with guns.

       The district court’s explanation of Chastain’s sentence was, admittedly, less than ideal. Here,

because the district court allowed Chastain to argue for a sentence, implicitly addressed that

argument, and explicitly considered the § 3553(a) sentencing factors, any error in determining

Chastain’s within-Guidelines sentence was neither plain nor obvious.

       AFFIRMED.


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       CLAY, Circuit Judge, dissenting. In this appeal Defendant challenges the procedural

reasonableness of his sixty-three month sentence. The procedural unreasonableness of the way

Defendant’s sentence was imposed was made manifest by the district court’s failure to specifically

address the history and characteristics of the Defendant or the circumstances of the offense in

applying the § 3553(a) sentencing factors; rather, the district court simply made a few general and

conclusory comments that could apply to virtually any defendant charged with the offense for which

Defendant was charged. The district court’s sentencing thus provides this Court with no basis for

conducting meaningful appellate review in this case. Therefore, I would vacate Defendant’s

sentence, and remand for resentencing.

       Prior to evaluating the procedural reasonableness of Defendant’s sentence, this Court must

“determine what standard of review applies” by “determin[ing] whether [defendant] preserved these

claims for appeal.” United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007). As we held in United

States v. Bostic, 371 F.3d 865 (6th Cir. 2004), “district courts are required, after announcing

sentence, to ask the parties whether they have any objections to the sentence that have not previously

been raised.” United States v. Herrera-Zuniga, 571 F.3d 568, 578 (6th Cir. 2009). If the defendant

fails to raise an error “[w]here the sentencing judge complies with this procedure, the defendant

generally forfeits the right to challenge on appeal any procedural errors to which he did not object

at the time of sentencing.” Id. Unpreserved procedural challenges will be reviewed for plain error

only. Id. at 581.

       In this appeal Defendant contends that his sentence is procedurally unreasonable because “the

[district] judge gave no explanation as to why he chose to sentence the defendant to the top of the


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United States v. Chastain

advisory range.” (Br. of Appellant at 5.) As required by Bostic, after sentencing Defendant, the

district court asked “does Mr. Chastain have any objection to the sentence the Court just announced

that he’s not previously raised?” (R. 41 at 8.) As Defendant did not object to his sentence at the

sentencing hearing, we review for plain error.

        Procedural reasonableness review “begins with a robust review of the factors evaluated and

the procedures employed by the district court in reaching its sentencing determination.” Bolds, 511

F.3d at 578. Specifically,

        [i]n reviewing sentences for procedural reasonableness the Court must ensure that the
        district court: (1) properly calculated the applicable advisory Guideline range;
        considered the other § 3553(a) factors as well as the parties’ arguments for a sentence
        outside the Guidelines range; and (3) adequately articulated its reasoning for
        imposing the particular sentence chosen, including any rejection of the parties’
        arguments for an outside-Guidelines sentence and any decision to deviate from the
        advisory Guidelines range.

Id. at 581. To establish plain error, “a defendant must show (1) error[,] (2) that was obvious or clear,

(3) that affected defendant’s substantial rights[,] and (4) that affected the fairness, integrity, or public

reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008)

(en banc).

        In sentencing Defendant, the district court stated, “the guideline range is merely advisory and

is not binding on the court” and the court,

        must take into account . . . the sentencing factors listed in 18 U.S.C. § 3553(a), in
        arriving at an appropriate sentence . . . . [T]he Court having considered the facts and
        circumstances of the offense, the background and history of the defendant, the factors
        stated in 18 U.S.C. Section 3553(a), it is the judgment of the Court . . . that the
        defendant, Douglas Chastain, is . . . to be imprisoned for a term of 63 months.

(R. 41 at 5, 7.)


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        In evaluating a district court’s articulation of the basis for a sentence, one of our tasks “is to

ensure that the district court has adequately explained the chosen sentence to allow for meaningful

appellate review and to promote the perception of fair sentencing.” Bolds, 511 F.3d at 580. A

district judge commits reversible procedural error by “fail[ing] to set forth enough of a statement of

reasons to satisfy the appellate court that he . . . has a reasoned basis for exercising his own legal

decision making authority.” Id. (internal quotations and citations omitted).

        In reviewing the district court’s application of the § 3553(a) factors “there is no requirement

. . . that the district court engage in a ritualistic incantation to establish consideration of a legal issue”

or that it “make specific findings related to each of the factors considered.” Id. However, in order

for a sentence to be procedurally reasonable “the record must contain the district court’s rationale

for concluding that the sentence imposed is sufficient but not greater than necessary, to comply with

the purposes of sentencing set forth in 18 U.S.C. § 3553(a).” Id. The district court must provide an

articulation of the reasons [it] reached the sentence ultimately imposed.” United States v. Jackson,

408 F.3d 301, 305 (6th Cir.2005). We have further explained that “[s]imply listing the § 3553(a)

factors and various characteristics of the defendant without referring to the applicable Guidelines

range or explaining the decision to stay within or deviate from that range is insufficient.” Bolds, 511

F.3d at 580 (quoting United States v. Cousins, 469 F.3d 572, 577 (6th Cir. 2006)). Instead, to be

procedurally reasonable, “[t]he district court must provide a clear explanation of why it has . . .

chosen the particular sentence imposed, regardless of whether it is within or outside of the

Guidelines.” Bolds, 511 F.3d at 580.




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       In this case, the district court did even less than what we found insufficient in Bolds, and

Cousins. The district court merely stated “the Court having considered the facts and circumstances

of the offense, the background and history of the defendant, the factors stated in 18 U.S.C. Section

3553(a), it is the judgment of the Court . . . that the defendant, Douglas Chastain, is . . . to be

imprisoned for a term of sixty-three months.” (R.41 at 7.) The district court neither articulated

which § 3553(a) factors it found relevant in sentencing Defendant, nor indicated with any

particularity what elements of Defendant’s history were relevant to its sentencing determination.

With no specific explanation of the district court’s sentencing decision, we cannot evaluate whether

the district court’s imposition of a sixty-three month sentence on Defendant was “sufficient, but not

greater than necessary, to comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a).”

Bolds, 511 F.3d at 578.

       The majority finds two of the district court’s statements sufficient indications that the district

court took Defendant’s circumstances and history into account to be spared reversal on plain error

review. First, addressing the Defendant, the district court stated,

       Mr. Chastain, one of the things that should be impressed upon you by this
       prosecution is that you cannot be around guns. You have a felony conviction, and
       that means that you and guns cannot be associated with each other. If there is a gun
       any place around, you need to make it your business to get out of there as quickly as
       you can.

(R. 41 at 6.) Second, the district court recommended that Defendant receive 500 hours of substance

abuse treatment to address Chastain’s alchohol abuse. (Id. at 7.) Although the majority finds it

noteworthy that the judge admonished Defendant not to have any contact with guns, such an




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admonishment would be routine in virtually every gun case and, by itself, fails to address the specific

characteristics of the Defendant or the circumstances of his offense.

       “This Court’s opinion in Vonner shows that plain error review should be extremely

deferential to the sentencing judge.” United States v. Wallace, 597 F.3d 794, 804 (6th Cir. 2010)

However, the Vonner “majority acknowledged that the crucial question is ‘whether the record makes

clear that the sentencing judge . . . was fully aware of the defendant’s circumstances and took them

into account in sentencing him.’” Id. (quoting Vonner, 516 F.3d at 387). Vonner “emphasize[s] that

the record must make clear that the sentencing judge considered the evidence and arguments” in

sentencing Defendant. Id. at 805 (same).

       It is true that in Vonner “the district judge was extremely brief in his analysis.” Id. The

district court in Vonner thanked the defendant for his apology and “encouraged [defendant] to

continue to cooperate with the government and to dedicate his prison time to learning certain life

skills and lifestyles that will be of benefit . . . when [defendant’s] period of incarceration is over.”

Vonner, 516 F.3d at 384. However, only after specifically addressing defendant’s individual

cooperation with the government did the Vonner district court sentence the defendant, stating that

“it had considered the nature and circumstances of the offense, the history and characteristics of the

defendant, and the advisory Guidelines range, as well as the other factors listed in 18 U.S.C. §

3553(a).” Id. at 386. The district court in Vonner thus, “did, albeit in a cursory manner, consider

or show an understanding of all of the defendant's arguments for leniency.” Wallace, 597 F.3d at

804.




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          In contrast to Vonner, however, the district court’s statements cited by the majority do

not adequately articulate the district court’s reasoning “for imposing the particular sentence chosen.”

Bolds, 511 F.3d at 581. We still “have no way of knowing how or to what extent [the § 3553(a)

factors and Defendant’s history] influenced the district judge’s eventual sentence.” Wallace, 597

F.3d at 803. Thus the district court made an“obvious [and] clear” error, Vonner, 516 F.3d at 386,

by failing to “ adequately explain[] the chosen sentence to allow for meaningful appellate review and

to promote the perception of fair sentencing.” Bolds, 511 F.3d at 580.

          In order to prevail on plain error review, Defendant must also demonstrate that the district

court’s obvious and clear error “affected [his] substantial rights,” and “affected the fairness, integrity,

or public reputation of the judicial proceedings.” Vonner, 516 F.3d at 386.

          We have held that “procedural errors that implicate[] a defendant’s right to meaningful

appellate review . . . generally implicate[] a substantial right. The right at issue is the right to

meaningful appellate review. That right is equally substantial for someone who is sentenced to either

a guidelines sentence or an above-guidelines sentence.” Wallace, 597 F.3d at 806-07. The district

court’s failure to adequately articulate its reasons for sentencing Defendant to sixty-three months

imprisonment thus affected Defendant substantial rights, namely his right to meaningful appellate

review.

          Moreover, a district court’s failure to sufficiently articulate the reasons supporting its

sentencing decision “also affects the fairness, integrity, or public reputation of judicial proceedings

. . . . [as it] is important not only for the defendant, but also for the public to learn why the defendant

received a particular sentence.” Id. at 807. The Supreme Court explained that “[c]onfidence in a


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judge’s use of reason underlies the public's trust in the judicial institution. A public statement of

those reasons helps provide the public with the assurance that creates that trust.” United States v.

Rita, 551 U.S. 338, 356 (2007). Therefore, the district court’s error also satisfies the final prong of

plain error, that the error “affected the fairness, integrity, or public reputation of the judicial

proceedings.” Vonner, 516 F.3d at 386.

       The district judge’s failure to articulate the reasons supporting Defendant’s sentence

prevented this Court’s meaningful review of Defendant’s sentence. This error affected Defendant’s

substantial rights, as well as the public perception of the proceeding’s fairness. For these reasons,

I would vacate Defendant’s sentence, and remand for resentencing.

       Therefore, I respectfully dissent.




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