                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0062n.06

                                        Case No. 18-3837

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                FILED
                                                                          Jan 29, 2020
UNITED STATES OF AMERICA,                           )
                                                                      DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE NORTHERN DISTRICT OF
DONALD SIMS,                                        )       OHIO
                                                    )
       Defendant-Appellant.                         )


              BEFORE: SILER, STRANCH, and NALBANDIAN, Circuit Judges.

     SILER, J., delivered the opinion of the court in which NALBANDIAN, J., joined.
STRANCH, J. (pp. 8–16), delivered a separate dissenting opinion.


       SILER, Circuit Judge. In 2016, Donald Sims—a convicted felon—sold a firearm and

ammunition to a confidential informant (“CI”) in violation of 18 U.S.C. § 922(g)(1), his second

felony possession offense. Sims was arrested and indicted for the offense, and pleaded guilty

without a plea agreement. The district court at sentencing emphasized Sims’s prior 34-month

sentence for his first felony possession conviction, and the additional 10-month sentence he served

for violating his supervised release in the prior case. The district court then varied upward from

the Sentencing Guidelines’ recommended 27- to 33-month sentence and imposed a sentence of

48 months’ imprisonment. Sims now appeals the substantive reasonableness of his sentence.

We AFFIRM.
Case No. 18-3837, United States v. Sims


                                                 I.

       In 2010, Sims was convicted of being a felon in possession of ammunition and sentenced

to 34 months’ imprisonment followed by a three-year term of supervised release. While serving

his term of supervised release, he twice tested positive for marijuana use, failed to submit a report

to his probation officer, and absconded from supervision. In 2014, the district court revoked

Sims’s supervised release and imposed a 10-month sentence of imprisonment for his violations.

       Then, in 2016, Sims sold a firearm and ammunition to a CI and was subsequently indicted

for unlawful possession of a firearm and ammunition by a felon, in violation of 18 U.S.C.

§ 922(g)(1). He later pleaded guilty to the charge without a plea agreement.

       At his sentencing hearing, the district court applied a base offense level of 14, and gave a

2-level reduction for acceptance of responsibility for a total offense level of 12. Based on Sims’s

criminal history category of V, the resulting Sentencing Guidelines range was 27-33 months.

       Defense counsel, arguing for a below or low-end Guideline sentence, noted Sims’s

“difficult childhood.” Defense counsel also noted that in the two-year period between his offense

and arrest, Sims had married and was helping raise his wife’s grandchild, was actively involved

with his own children, and had lived in the community without incident. The defense submitted

eleven letters of support substantiating the changes he had made. Sims’s landlord, also his

employer, submitted a letter indicating Sims was “a very hard worker” with “excellent attendance”

and “very impressive work skills,” and that he intended to re-hire Sims when he was released.

Defense counsel pointed out that Sims had “maintained employment” and had taken a substance

abuse class to address his prior marijuana use. While acknowledging the court’s concern over

Sims’s criminal record, defense counsel also noted that Sims had committed only traffic offenses

since the time of the instant offense, had readily admitted his conduct when confronted by law



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Case No. 18-3837, United States v. Sims


enforcement prior to his indictment, and contended that his prior convictions included minor

misdemeanors for marijuana possession and disorderly conduct.

       The district court emphasized Sims’s prior 34-month sentence for his first felon-in-

possession conviction, and his further 10-month sentence for violating his supervised release in

that case. The court explained that it was considering varying above the Guidelines range because

Sims was “not a defendant who [didn’t] know that [he was] facing a federal prosecution for

possessing a gun and ammunition” but rather he went “out and [did] it again,” despite knowing

“what the consequences would be here in federal court.” Accordingly, since his prior term of

imprisonment had failed to “send [Sims] a message,” the court found it necessary to “remove him

from society so that he understands he cannot go out and get guns and then put them in the hands

of other people, many times people that can’t have them.” The court noted that Sims’s positive

interactions in the community in the two-year gap between his offense and arrest were factors that

would “count as I decide how much the upward variance will be because I don’t think the

guidelines are sufficient for individuals who spent 34 months on one gun case and another ten on

a violation.” It further noted that Sims’s juvenile record included “another firearm offense . . .

which is serious, as well.”

       For his part, Sims admitted that his decision to cease his marijuana use occurred during his

incarceration, and that he had been using marijuana when he was arrested in March 2018. Sims

stated that he took “full responsibility for my offense conduct.”

       In discussing the applicable § 3553(a) factors, the court stated that it had “carefully

considered the matter,” including “review[ing] the sentencing memorandum submitted by the

defendant, the letters that were submitted in support and the certificates” in deciding “an

appropriate sentence in the matter.” It noted Sims’s continued contact with his three minor



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Case No. 18-3837, United States v. Sims


children, and that he planned to live “with his wife and two grandchildren . . . upon his release

from custody in this case.” As to the offense conduct, the court noted that Sims “did not just sell

the gun, but he also sold the ammunition to . . . make certain the firearm could be utilized.” It

noted Sims’s juvenile record and “14 adult convictions ranging from no operator’s license to

burglary.” The court acknowledged Sims’s difficult upbringing and prior substance abuse,

including “test[ing] positive for drugs at the time of his appearance through pretrial services” and

Sims’s belief that “he could benefit from substance abuse counseling.”

       The court also acknowledged that although an upward variance might result in “some

disparity between defendants with similar records and similar past[s],” it believed that a Guidelines

sentence would be “insufficient . . . because of the defendant’s prior record and history.” The court

explained that Sims had “been involved with the law since the age of 16” and despite being

incarcerated and placed on probation previously, none of his past “sanctions ha[d] deterred him

from being involved with guns,” including his “prior felon in possession conviction in our district”

that resulted in a 34-month sentence, violation of his supervised release, and additional 10-month

sentence. Despite these prior convictions, the court noted that Sims “continue[d] to possess

firearms knowing he’s unable to do so,” thus posing “a risk to the community by possessing and

selling firearms.”   It concluded that since Sims’s prior 34- and 10-month sentences were

insufficient “to get the defendant’s attention, to understand he can’t have a gun, then the 27- to 33-

month range isn’t sufficient.” The court indicated that it had planned to vary upward to a 60-

month sentence, representing half the applicable statutory maximum penalty, but had instead

decided to apply a less substantial upward variance, and imposed a 48-month sentence, based on

the defense’s mitigating arguments.




                                                -4-
Case No. 18-3837, United States v. Sims


       Defense counsel objected to the upward variance as unwarranted, arguing that the court

had placed too much weight on the defendant’s record, as opposed to the sentencing factors raised

by the defense. The court again explained its sentence, and emphasized its prior intention to

impose a 60-month sentence, before the defense’s mitigating arguments, “reread[ing] your

briefing,” and considering that Sims had “readily admitted his conduct.” Sims now appeals the

substantive reasonableness of his above-Guidelines sentence.

                                               II.

       We review a district court’s sentencing decision “under a deferential abuse-of-discretion

standard” and “take into account the totality of the circumstances” in determining a sentence’s

substantive reasonableness. Gall v. United States, 552 U.S. 38, 41, 51 (2007).1 “An abuse of

discretion is established where the reviewing court is left with a definite and firm conviction that

the district court committed a clear error of judgment.” Coach, Inc. v. Goodfellow, 717 F.3d 498,

505 (6th Cir. 2013).

       “A sentence will be found to be substantively unreasonable when the district court selects

the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent

§ 3553(a) factors[,] or gives an unreasonable amount of weight to any pertinent factor.” United

States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008) (internal quotation marks and citation omitted).

“The essence of a substantive-reasonableness claim is whether the length of the sentence is greater

than necessary to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United States v.

Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010) (internal quotation marks omitted). On

review, we “may consider the extent of the deviation, but must give due deference to the district



       1
         Given that Sims does not challenge the procedural reasonableness of his sentence, we
need only review for substantive reasonableness. United States v. Walls, 546 F.3d 728, 736 (6th
Cir. 2008).
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Case No. 18-3837, United States v. Sims


court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact

that the appellate court might reasonably have concluded that a different sentence was appropriate

is insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51; see United States v.

Vasquez, 560 F.3d 461, 473 (6th Cir. 2009) (noting that the court “give[s] due deference to the

district court’s application of the guideline to the facts.” (internal quotation marks and citation

omitted)).

       Sims argues that at sentencing, the district court “did not explain how the facts and

circumstances of Sims’s offense and his personal and criminal history removed this case from the

‘heartland’ of felon-in-possession cases,” and “gave an unreasonable amount of weight to Sims’s

prior felon-in-possession conviction, and too little weight to the evidence showing that he poses

neither a danger to the community, nor a serious recidivism risk.” Sims further contends that

caselaw demonstrates that above-Guidelines sentences in felon-in-possession cases are reserved

for defendants whose offenses and/or criminal histories stand out for their violence and brazenness.

       Sims’s argument ignores, however, that provided the district court has examined all the

§ 3553(a) factors, it may place greater weight on a particular factor if such weight is warranted

under the facts of the case. United States v. Adkins, 729 F.3d 559, 571 (6th Cir. 2013). Unlike our

recent decision in United States v. Warren—in which we reversed as substantively unreasonable

a sentence that “roughly doubl[ed]” the recommended sentence where the variance was based

solely on the defendant’s criminal record, which is already accounted for in a defendant’s criminal

history category, 771 F. App’x 637, 641-43 (6th Cir. 2019) (emphasis in original)—the district

court here provided several reasons supporting its decision to vary upward by roughly one-half,

even discussing the defense’s mitigating arguments that had persuaded the court not to impose a

greater variance. The court further explained its heightened concern given that Sims had not only



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Case No. 18-3837, United States v. Sims


possessed a firearm as a prior felon, but had in fact sold the gun and ammunition to another person,

making his new offense “worse.” The court thus adequately explained why the nature and

circumstances of Sims’s case fell outside the “heartland” of felon-in-possession cases, and noted

that the Guidelines do not account for an “individual[] who spent 34 months on one gun case and

another ten on a violation,” necessitating the upward variance, despite the potential disparity with

other sentences.

       Because the district court considered all pertinent factors in this case, Sims faces a “much

greater burden in arguing that the court has given an unreasonable amount of weight to any

particular one.” United States v. Zobel, 696 F.3d 558, 571 (6th Cir. 2012) (internal quotation

marks and citation omitted). Sims has failed to meet his significant burden to instill in us “a

definite and firm conviction that the district court committed a clear error of judgment.”

Goodfellow, 717 F.3d at 505. His argument ultimately asks this court to reweigh the § 3553(a)

factors differently than did the district court, and is therefore “simply beyond the scope of our

appellate review, which looks to whether the sentence is reasonable, as opposed to whether in the

first instance we would have imposed the same sentence.” United States v. Ely, 468 F.3d 299, 404

(6th Cir. 2006).

       AFFIRMED.




                                               -7-
Case No. 18-3837, United States v. Sims


       JANE B. STRANCH, Circuit Judge, dissenting. Donald Sims pled guilty to one count of

unlawful possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1)

for selling a pistol and magazine to a confidential informant for $300. With a category V criminal

history taken into account, his Guidelines range was 27-33 months. The district court varied

upward 45% from the top of that range to a four-year sentence, having concluded that prior

sanctions failed “to send a message” and that Sims “has no regard for following the rules.” Sims

explained that he got the firearm for a friend who said he had been robbed and needed to be able

to defend himself. He also noted that he lived a law-abiding life, save a few vehicular infractions,

for the two years between the gun sale at issue and his arrest. In this same two-year period, he got

married, held a job, and became involved in the lives of his children. Sims’s life in the leadup to

his arrest (he was 37-years old at the time of sentencing) stands in stark contrast to the abuse and

mental health issues that he suffered during his childhood and adolescent life. Sims has had no

history of violence as an adult and plans to return to his wife and step-grandchildren upon release

from custody.

       Knowing the facts is necessary, but merely the beginning in applying the law to determine

whether a sentence is substantively reasonable. For more than a decade, we and our sister circuits

have struggled to implement the Supreme Court’s instruction in Gall v. United States to “consider

the substantive reasonableness of the sentence imposed.” 552 U.S. 38, 51 (2007). We have

sometimes allowed a finding of procedural reasonableness to indicate satisfaction of substantive

reasonableness. But Gall requires a separate assessment of whether an otherwise procedurally

reasonable sentence is greater than necessary in light of the defendant’s unique circumstances and

sentences given to similarly-situated defendants. 552 U.S. at 49–51, 54–56. More recently, we

have begun to address that problem, recognizing the distinct jobs of procedural reasonableness and



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Case No. 18-3837, United States v. Sims


explaining that substantive reasonableness review also includes an assessment of whether “the

court placed too much weight on some of the § 3553(a) factors and too little on others.” United

States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019) (quoting United States v. Rayyan, 885 F.3d

436, 442 (6th Cir. 2018)).

       That does not mean, of course, that a sentence is substantively unreasonable merely

because we would have balanced the § 3553(a) factors differently. Nor does it mean that if the

district court considered and weighed all pertinent factors, it did not give an unreasonable amount

of weight to any particular one. Though appealing at first glance, this premise is problematic

because it comes dangerously close to saying that a procedurally reasonable sentence (one that

“consider[s] the § 3553(a) factors,” Gall, 552 U.S. at 51) is presumed to be substantively

reasonable (does not “place[] too much weight on some of the § 3553(a) factors and too little on

others,” Parrish, 915 F.3d at 1047 (citation omitted)). That presumption is found nowhere in Gall.

If the court inappropriately weighs the § 3553(a) factors, “the sentence is substantively

unreasonable regardless of whether the court checked every procedural box before imposing

sentence.” United States v. Boucher, 937 F.3d 702, 707 (6th Cir. 2019) (quoting Parrish, 915 F.3d

at 1047).    Comparably, despite procedural propriety, a sentence would be substantively

unreasonable if it results from a district court’s failure to adequately consider a defendant’s life

history and unique characteristics, the kinds of sentences available, and the “need to avoid

unwarranted sentence disparities.” § 3553(a).

       One way to determine whether the length of the sentence was “greater than necessary”

(§ 3553(a)) to achieve the goals of sentencing is found in Kimbrough, decided the same day as

Gall. Kimbrough v. United States, 552 U.S. 85, 109 (2007). Because the Sentencing Commission

exercised its expertise in selecting the sentencing range for the crimes covered by a particular



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Case No. 18-3837, United States v. Sims


guideline, we have explained that “a sentence that departs from the advisory range in a ‘mine-run

case’ warrants ‘closer review.’” United States v. Herrera-Zuniga, 571 F.3d 568, 582 (6th Cir.

2009) (quoting Kimbrough, 552 U.S. at 109). To be clear, “closer review” cannot mean de novo.

The Guidelines are not mandatory, and we review both within- and outside-Guidelines sentences

for abuse of discretion. See Gall, 552 U.S. at 51. But if the sentencing court deems a sentence

outside the Guidelines appropriate in an otherwise unexceptional case, we look closer to “ensure

that the justification is sufficiently compelling to support the degree of the variance.” Id. at 50.

As applicable to any substantive reasonableness review, potential justifications could include, for

example, a policy-based disagreement with the Guidelines, see Kimbrough, 552 U.S. at 110–11,

the Government’s concession that a below-Guidelines sentence is in order, a Rule 11(c)(1)(C) plea

agreement specifying a sentence, etc. Whatever the justification may be, the sentencing court must

clearly articulate it, and we must agree, on “closer review,” that it is compelling.

       Applying that framework to this case, I would first ask whether this variance was imposed

in a mine-run case. See Herrera-Zuniga, 571 F.3d at 582. A mine-run case is not a theoretical,

minimally culpable offense. It is a normal offense under that guideline, with those sentencing

enhancements and that criminal history category. Thus, in Rita v. United States, the Supreme

Court summarized the crimes at issue, the offense level, and the criminal history category before

asking whether the defendant’s “circumstances are special.” 551 U.S. 338, 359–60 (2007).

       The primary concern of the district court was that Sims committed the same crime twice.

But of course, recidivism is at the heart of his offense. Sims faced criminal penalties for firearm

possession precisely because he had previously been convicted of “a crime punishable by

imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). And though the district

court was concerned that Sims had already “served custody time,” it is impossible to be placed in



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Case No. 18-3837, United States v. Sims


category V without serving custodial sentences. See USSG § 4A1.1. The mere existence of prior

convictions thus does not remove Sims’s case from the heartland. See United States v. Warren,

771 F. App’x 637, 642 (6th Cir. 2019) (“[B]ecause the Guidelines already account for a

defendant’s criminal history, imposing an extreme variance based on that same criminal history is

inconsistent with ‘the need to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct’ under 18 U.S.C. § 3553(a)(6).”);

United States v. Kirchhof, 505 F.3d 409, 415 (6th Cir. 2007) (reversing a variance in part because

the defendant’s “lack of prior criminal history was already taken into account in calculating his

guidelines range”).

       At issue is whether Sims’s recidivism was somehow unusual or unaccounted for in the

Guidelines. See, e.g., United States v. Williams, 664 F. App’x 517, 519 (6th Cir. 2016) (noting

that the crimes were increasing in severity); Herrera-Zuniga, 571 F.3d at 589 (finding the assessed

tier underrepresented the severity of past crimes). More specifically, given the district court’s

stated concerns, is it unusual for a defendant in category V not only to recidivate, but to commit

the same firearm offense twice? The court failed to consider this question. We should. The answer

is no. Among federal offenders, those convicted of firearms offenses are the most likely to

recidivate, with 68.3% being rearrested within eight years of release.1 And among state prisoners,

not only do 83.4% reoffend within nine years of release, but 58.2% commit the same type of




       1
          See U.S. Sentencing Comm’n, Recidivism Among Federal Offenders: A
Comprehensive Overview 20 (Mar. 2016), https://www.ussc.gov/sites/default/files/pdf/research-
and-publications/research-publications/2016/recidivism_overview.pdf.

                                              - 11 -
Case No. 18-3837, United States v. Sims


offense again.2 These statistics represent the mine-run case. A characteristic shared by 60% to

70% of offenders cannot remove Sims’s case from the heartland.

       Second, Sims tested positive for marijuana while on probation. The legal landscape

regarding marijuana has changed.3 Indeed, under federal law, a single positive drug test does not

even justify revoking supervised release. 18 U.S.C. § 3583(g)(4). And although the sentencing

transcript reveals that the district court was troubled by Sims’s continued marijuana usage, it did

not consider whether positive marijuana tests are uncommon among mine-run defendants.

       Finally, Sims sold a gun and magazine. The ammunition argument is a red herring.

A cursory review of our caselaw demonstrates that guns involved in firearms charges are very

frequently loaded—or worse, fired.4 As for the sale itself, the district court considered only its

troubling aspects, declaring (incorrectly) that Sims’s reason was “immaterial.” But “a defendant’s

motive is a relevant—and often important—factor under the Guidelines.” Boucher, 937 F.3d at

709; see also United States v. Borden, 365 F. App’x 617, 622 (6th Cir. 2010); United States v.

Blackwell, 459 F.3d 739, 774 (6th Cir. 2006). We should consider the specific circumstances and

ask whether selling a pistol to a friend who seeks protection because he was “robbed at his house,”


       2
         See Mariel Alper et al., U.S. Dep’t of Justice Statistics, 2018 Update on Prisoner
Recidivism: A 9-Year Follow-up Period (2005-2014) at 11 (May 2018),
https://www.bjs.gov/content/pub/pdf/18upr9yfup0514.pdf.
       3
         John G. Sprankling, Owning Marijuana, 14 Duke J. Const. L. & Pub. Pol’y 1, 16 (2019).
See Ohio Rev. Code §§ 3796.01 et seq. (legalizing marijuana for medical purposes); 2019 Ohio
S.B. 57 (legalizing hemp). See Cincinnati, Ohio Code of Ordinances § 910-23 (providing for a
zero-dollar fine for possession of less than 100 grams of marijuana, and explaining that a
conviction for violation of the section “does not constitute a criminal record”).
       4
         See, e.g., United States v. Shanklin, 924 F.3d 905, 911 (6th Cir. 2019) (loaded); United
States v. Massey, 758 F. App’x 455, 457 (6th Cir. 2018) (per curiam) (loaded plus extra
ammunition); United States v. Stafford, 721 F.3d 380, 387–88 (6th Cir. 2013) (fired); United States
v. Angel, 576 F.3d 318, 319–20 (6th Cir. 2009) (loaded plus extra ammunition); United States v.
Maxon, 250 F. App’x 129, 130 (6th Cir. 2007) (fired); United States v. Cheney, 183 F. App’x 516,
517 (6th Cir. 2006) (loaded).

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Case No. 18-3837, United States v. Sims


is worse than mine-run firearm possession—a category that routinely includes possessing a gun to

protect a drug stash.5

       Asking the correct questions reveals that this case is in the heartland. Applying “closer

review” to this sentence, Kimbrough, 552 U.S. at 109, requires us to ask what “compelling” reason

the district court gave to vary, Gall, 552 U.S. at 50.

       The district court apparently thought that a compelling justification was unnecessary

because a one-year upward variance from the top of the Guidelines range was “not substantial in

[the court’s] view.” The court deemed this variance small by reference to its own original intention

“to vary upward to the mid range of the statutory penalty of 60 months.” But the statutory range

is not the starting point for the sentencing court’s analysis. See United States v. Poynter, 495 F.3d

349, 355 (6th Cir. 2007) (explaining that though the statutory maximum may eliminate a risk of

disparity created by sentences above the maximum, “that maximum does little to diminish

disparities for individuals who receive (or should receive) sentences below [the maximum]”). The

beginning point should be the Guidelines, which are designed to diminish sentencing disparities

among similar defendants. Id.

       The inquiry is not complete until we consider the special circumstances and potential

justifications that are applicable under § 3553(a), particularly those argued by the defense. First,

the Government let Sims remain in the community for more than two years after the gun sale took

place in January 2016. During that period, Sims’s only offenses were vehicular infractions. The

district court refused to consider that recent history on the basis that Sims “knew that this was, this

case might be coming down the road, so what effect that had on his behavior, I do not know.” This




       5
        See, e.g., Shanklin, 924 F.3d at 910–11; Massey, 758 F. App’x at 457; Angel, 576 F.3d at
320; Cheney, 183 F. App’x at 517.
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Case No. 18-3837, United States v. Sims


is unwarranted speculation; there is no evidence in the record that Sims knew about his pending

arraignment until he was approached by detectives in December 2017, two years after the sale.

The court therefore should have assigned at least some weight to the Government’s apparently

justified belief that there was minimal need “to protect the public from further crimes of the

defendant.” 18 U.S.C. § 3553(a)(2)(C). See Pepper v. United States, 562 U.S. 476, 491 (2011)

(explaining that evidence of rehabilitation “may plainly be relevant to” several § 3553 factors,

including deterrence).

       Similarly, Sims had “demonstrate[d] an honest effort to turn his life around.” Boucher,

937 F.3d at 711. In the years preceding his arrest, Sims (apparently for the first time in his life)

got married, held down a steady job, and became active in the lives of his children and step-

children. His son’s preschool teacher described Sims’s frequent attendance at school programs to

“help[] out with the students,” and the adopted father of another student explained that Sims’s son

was “thriving because of his father being active in his life.” Sims’s employer verified that his

attendance and work product were “outstanding.” Those achievements are made more significant

by contrast to Sims’s younger years. His parents struggled with substance abuse and physically

and emotionally abused him to the point that he was twice placed in foster care. At age 15, Sims

attempted suicide; he then dropped out of high school and began committing crimes. The district

court failed to recognize the effort and the challenge of building a largely law-abiding life on those

shaky foundations. Instead, it noted dismissively that it reviewed “the letters that were submitted

in support and the certificates and what have you,” and rattled off childhood abuse in a list of

Sims’s characteristics that included his “good physical health,” his positive drug test at

arraignment, and his plans to live with his wife upon release. Merely mentioning “the history and

characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), may satisfy procedural reasonableness,



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Case No. 18-3837, United States v. Sims


but substantive reasonableness requires at least some weighing of those characteristics. Cf. Gall,

552 U.S. at 59 (“The District Court quite reasonably attached great weight to Gall’s self-motivated

rehabilitation . . . .”).

                                              * * *

        Evidence from all the stakeholders—The Sentencing Commission, trial and appellate

judges, scholars, legal and correctional experts, and the incarcerated—reveals how hard it can be

to understand and apply substantive reasonableness in sentencing. Those difficulties, however,

provide no license to discount substantive reasonableness, equate it to procedural reasonableness,

or substitute statutory maximums for real review. Those who must impose, review, or live with a

sentence need a clearer grasp of the tenets of substantive reasonableness.

        In Kimbrough, the Supreme Court set out an initial pathway, explaining one important

purpose of substantive reasonableness review.           Such review guards against unwanted

discrepancies among sentences for comparable crimes and helps courts police systemic and

historical problems with sentencing.6 Gall teaches that appellate courts are to separately assess

whether a procedurally reasonable sentence could create sentencing disparities. 552 U.S. at 49–

51, 54–56. “[A] district judge who gives harsh sentences to Yankees fans and lenient sentences to

Red Sox fans would not be acting reasonably even if her procedural rulings were impeccable.”

Rita, 551 U.S. at 365 (Stevens, J., concurring).

        Substantive reasonableness review serves as a check and balance on the American

sentencing system. Though the sentencing court’s ring-side view puts it “in a superior position to




        6
          See Sonja B. Starr & M. Marit Rehavi, Mandatory Sentencing and Racial Disparity:
Assessing the Role of Prosecutors and the Effects of Booker, 123 Yale L.J. 2, 78 (2013) (“After
controlling for the arrest offense, criminal history, and other prior characteristics, sentences for
black male arrestees diverge substantially from those of white male arrestees . . . .”).
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Case No. 18-3837, United States v. Sims


find facts and judge their import under § 3553(a) in the individual case,” Gall, 552 U.S. at 51, our

bird’s-eye view means we “are far better positioned to assess whether a sentence qualifies as an

outlier than a district court judge who would have to make an active effort to understand how his

sentencing practices rate with those of his colleagues.” Note, More Than A Formality: The Case

for Meaningful Substantive Reasonableness Review, 127 Harv. L. Rev. 951, 967 (2014).

       It is undoubtably a challenge to distinguish a harsh-but-reasonable sentence from an

unreasonably harsh sentence. But that provides no basis for failing to perform substantive

reasonableness review to determine whether the sentence imposed is “sufficient, but not greater

than necessary.”     §3553(a).     There are guideposts available for assessing substantive

reasonableness as a distinct inquiry. We should employ them more thoroughly.

       I agree that Sims broke the law. His unreasonably harsh sentence, however, fails the

substantive reasonableness test. I therefore respectfully dissent.




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