                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 10-1597

U NITED STATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

W AYNE C. SCOTT,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
         No. 1:09-cr-00548-1—Blanche M. Manning, Judge.



   A RGUED S EPTEMBER 29, 2010—D ECIDED JANUARY 12, 2011




 Before B AUER, W OOD and W ILLIAMS, Circuit Judges.
  B AUER, Circuit Judge. Wayne C. Scott pleaded guilty
to two counts of mail fraud in violation of 18 U.S.C.
§ 1341. He appeals his sentence to this court and argues
that he is entitled to resentencing because (1) the
district court ignored the fact that the defendant’s
coconspirator was never convicted or sentenced, and
(2) the defendant’s sentence is unreasonable. We have
reviewed the district court’s sentencing procedures
2                                           No. 10-1597

de novo and the reasonableness of the defendant’s
sentence for abuse of discretion. For the following
reasons, we affirm.


                  I. BACKGROUND
  The defendant engaged in two fraudulent schemes,
both of which were carried out in almost the exact
same manner. First, in 2007, the defendant represented
himself to be Chris Harper, the advertising manager of
a registered Illinois corporation, Media Concepts. Then,
in 2009, the defendant represented himself to be Chris
Jenkins, the advertising manager of a Delaware corpora-
tion, Moyer Direct. Acting through these companies,
the defendant contacted random individuals through
mail, e-mail, and the telephone, ultimately convincing
over 250 people to invest in Media Concepts’ and Moyer
Direct’s monthly advertising campaigns. The defendant
described these monthly advertising campaigns as
“tested and proven,” “absolutely safe,” and “absolutely
guaranteed” to at least double an investment within
sixty days. In reality, neither Media Concepts nor
Moyer Direct engaged in advertising campaigns, and
the investors received only a rude awakening. The defen-
dant, however, pocketed at least $804,709, which he
used to buy gifts and luxury items.
  In June 2009, a federal grand jury charged the defen-
dant and his coconspirator, Gabriel A. Brown, in a six-
count indictment for engaging in a scheme to defraud
investors through the use of the United States mail. The
defendant ultimately pleaded guilty to two counts of
No. 10-1597                                                  3

mail fraud, and the district court sentenced him to
63 months in prison, the lowest possible sentence
within the advisory United States Sentencing Guideline
range. For unknown reasons, however, prosecutors
dismissed all charges against the coconspirator. The
defendant now appeals his sentence to this court,
asking that we vacate and remand for resentencing.


                      II. DISCUSSION
  The bulk of the defendant’s arguments concern the
sentencing statute codified at 18 U.S.C. § 3553(a). In
relevant part, this statute states,
   (a) Factors to be considered in imposing a sen-
   tence.—The court shall impose a sentence sufficient,
   but not greater than necessary, to comply with the
   purposes set forth in paragraph (2) of this subsec-
   tion. The court, in determining the particular sen-
   tence to be imposed, shall consider—
       (1) the nature and circumstances of the offense
       and the history and characteristics of the defen-
       dant;
       (2) the need for the sentence imposed—
              (A) to reflect the seriousness of the offense, to
              promote respect for the law, and to provide
              just punishment for the offense;
              (B) to afford adequate deterrence to crim-
              inal conduct;
4                                              No. 10-1597

           (C) to protect the public from further crimes
           of the defendant; and
           (D) to provide the defendant with needed
           educational or vocational training, medical
           care, or other correctional treatment in the
           most effective manner;
       (3) the kinds of sentences available;
       (4) the kinds of sentence and the sentencing range
           established for—
           (A) the applicable category of offense com-
           mitted by the applicable category of defendant
           as set forth in the guidelines . . .;
       (5) any pertinent policy statement . . .;
       (6) the need to avoid unwarranted sentence dis-
           parities among defendants with similar records
           who have been found guilty of similar conduct;
           and
       (7) the need to provide restitution to any victims
           of the offense.
18 U.S.C. § 3553(a) (2006). The defendant first challenges
his sentence by focusing on the specific language of
§ 3553(a)(6), which we will refer to for clarity as “sub-
paragraph (a)(6).” The defendant then centers his argu-
ment on all of the factors contained within § 3553(a)
in general, which we will refer to either as “§ 3553(a)”
or “§ 3553(a) generally.”
No. 10-1597                                             5

 A. Consideration of a Coconspirator’s Lack of Con-
    viction Under Subparagraph (a)(6)
  The defendant contends that the district court failed to
follow proper sentencing procedures because it was
implicitly required, or at least permitted, to consider a
coconspirator’s non-conviction and non-sentencing
under subparagraph (a)(6). This is a question of law
that we review de novo. See United States v. Curby, 595
F.3d 794, 796 (7th Cir. 2010).
  Subparagraph (a)(6) requires courts to consider “the
need to avoid unwarranted sentence disparities among
defendants with similar records who have been found
guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The
defendant concedes that on its face subparagraph (a)(6)
contemplates the avoidance of sentencing disparities
only among those individuals who have been convicted
of and sentenced for similar crimes. Nevertheless, the
defendant argues that courts are implicitly required,
or at least permitted, to consider the non-conviction and
non-sentencing of coconspirators under this subpara-
graph. He reasons that the general purpose of subpara-
graph (a)(6) is to avoid sentencing disparities, and there
is no greater disparity than the one between a cocon-
spirator who is sentenced and a coconspirator who is
not even charged or convicted, let alone sentenced.
The defendant is therefore arguing that the generally
phrased purpose of subparagraph (a)(6) permits us to
read a statute requiring conviction on its face as a
statute that does not require conviction in application.
  While we agree that subparagraph (a)(6) is aimed
at reducing sentencing disparities, we decline to use a
6                                                   No. 10-1597

broadly phrased purpose of the subparagraph as
an opportunity to expand the reach of its clear, unam-
biguous, and narrowly phrased language. Instead, we
remain true to our precedent, holding that in order for
subparagraph (a)(6) to be applicable, the court must
be presented with disparate sentences not among co-
defendants or coconspirators but among judges or dis-
tricts. See, e.g., United States v. Bartlett, 567 F.3d 901, 907-08
(7th Cir. 2009); United States v. Pisman, 443 F.3d 912,
916 (7th Cir. 2006); United States v. Boscarino, 437 F.3d
634, 637-38 (7th Cir. 2006). We therefore find that there
is no sentencing disparity in this case, noting addi-
tionally that there can be no disparity between the de-
fendant’s sentence and the coconspirator’s sentence
when the latter does not even exist. Accordingly, we
affirm the district court, finding that the court properly
refused to consider the coconspirator’s non-conviction
and non-sentencing under subparagraph (a)(6).


    B. Consideration of a Coconspirator’s Lack of Con-
       viction Under § 3553(a) Generally
  The defendant argues that the district court erred
when it held that it could not consider the coconspirator’s
lack of conviction and sentencing under § 3553(a) gener-
ally. However, the coconspirator here was not tried and
acquitted; instead, the prosecutor dropped all charges
against her. Thus, the defendant is not merely arguing
that the district court should have considered the
coconspirator’s lack of conviction and sentencing; he is,
more accurately, arguing that the court should have
No. 10-1597                                            7

considered the prosecutor’s decision not to bring
charges against the coconspirator in the first place. The
issue presented to this court therefore involves a
conflict between the judge’s responsibility to avoid in-
terfering with prosecutorial discretion and the judge’s
responsibility to consider relevant information under
§ 3553(a). Compare United States v. Gil, 9 F.3d 113,
113 (7th Cir. 1993) (stating that judicial review over a
prosecutor’s decision of when to prosecute and what
sentence to recommend is generally improper) (citing
Wayte v. United States, 470 U.S. 598, 607 (1985)) with
United States v. Jackson, 547 F.3d 786, 792 (7th Cir.
2008) (noting that § 3553(a) factors “are broad, vague,
and open-ended,” leaving the sentencing judge
with “considerable discretion to individualize the
sentence to the offense and offender as long as the
judge’s reasoning is consistent with § 3553(a)”) (quoting
United States v. Wachowiak, 496 F.3d 744, 748 (7th Cir.
2007)). This is a question of law that we review de novo.
See Curby, 595 F.3d at 796.
  We begin our analysis by questioning, even under the
admittedly broad language of § 3553(a), whether the
prosecutor’s unexplained decision for not prosecuting
the coconspirator is relevant to the judge’s determina-
tion of a just sentence for the defendant. For all we
know, the prosecutor may have decided not to charge
the coconspirator because she is a cooperating witness
or because she is still under investigation, neither of
which would be a reason to reduce the defendant’s sen-
tence. See id. at 562 n.13. We have expressed this same
concern in other cases, noting that prosecutorial deci-
8                                               No. 10-1597

sions at the charging stage are particularly ill-suited to
judicial review because factors such as “the strength of
the case, the prosecution’s general deterrence value, the
Government’s enforcement priorities, and the case’s
relationship to the Government’s overall enforcement
plan are not readily susceptible to the kind of analysis
the courts are competent to undertake.” Rodriguez v.
Peters, 63 F.3d 546, 562 n.13 (7th Cir. 1995) (citing Wayte,
470 U.S. at 607). In this case, the motivations behind
the prosecutor’s charging decisions are unknown, undis-
coverable, and thus favorable neither to the defendant’s
nor to the prosecutor’s case. We therefore cannot say
that the prosecutor’s decision to refrain from charging
the coconspirator was relevant during the defendant’s
sentencing hearing, even under the broad language of
§ 3553(a).
  Putting our concerns with relevance aside, however,
we reject the notion that a court may consider the
coconspirator’s lack of conviction under § 3553(a) be-
cause holding otherwise would deprive prosecutors of
the opportunity to exercise any meaningful prosecutorial
discretion in coconspirator cases. Under our system of
separation of powers, prosecutors retain broad discre-
tion to enforce criminal laws because they are required
to help the President “take Care that the Laws be faith-
fully executed.” U.S. Const., Art. II, § 3; see United States
v. Armstrong, 517 U.S. 456, 464 (1996). In order to ensure
that prosecutorial discretion remains intact and firmly
within the province of the Executive, judicial review over
prosecutorial discretion is limited. See e.g., United States
v. Woods, 576 F.3d 400, 409 (7th Cir. 2009) (explaining
No. 10-1597                                                 9

that “[t]here is nothing that this court either could or
should do about the prosecutorial discretion that is exer-
cised at the charging state”); United States v. Moore, 543
F.3d 891, 899-900 (7th Cir. 2008); In re United States, 503
F.3d 638, 641 (7th Cir. 2007); United States v. Roberson,
474 F.3d 432, 434 (7th Cir. 2007); Armstrong, 517 U.S. at 464;
Rodriguez, 63 F.3d at 562 n.13. The United States Supreme
Court described the interplay between judicial review
and prosecutorial discretion in Wayte v. United States:
    In our criminal justice system, the Government retains
    “broad discretion” as to whom to prosecute. United
    States v. Goodwin, 457 U.S. 368, 380, n. 11, 102 S.Ct.
    2485, 2492, n. 11, 73 L.Ed.2d 74 (1982); accord, Marshall
    v. Jerrico, Inc., 446 U.S. 238, 248, 100 S.Ct. 1610, 1616,
    64 L.Ed.2d 182 (1980). “[S]o long as the prosecutor
    has probable cause to believe that the accused com-
    mitted an offense defined by statute, the decision
    whether or not to prosecute, and what charge to file
    or bring before a grand jury, generally rests entirely
    in his discretion.” Bordenkircher v. Hayes, 434 U.S.
    357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978). This
    broad discretion rests largely on the recognition
    that the decision to prosecute is particularly
    ill-suited to judicial review. Such factors as the
    strength of the case, the prosecution’s general de-
    terrence value, the Government’s enforcement priori-
    ties, and the case’s relationship to the Govern-
    ment’s overall enforcement plan are not readily sus-
    ceptible to the kind of analysis the courts are compe-
    tent to undertake. Judicial supervision in this area,
10                                               No. 10-1597

     moreover, entails systemic costs of particular con-
     cern. Examining the basis of a prosecution delays
     the criminal proceeding, threatens to chill law enforce-
     ment by subjecting the prosecutor’s motives and
     decisionmaking to outside inquiry, and may under-
     mine prosecutorial effectiveness by revealing the
     Government’s enforcement policy. All these are sub-
     stantial concerns that make the courts properly hesi-
     tant to examine the decision whether to prosecute.
470 U.S. at 607. Reflecting this framework, our case law
embodies the long-settled principle that we safeguard
prosecutorial discretion by shielding it from judicial
review that either forces the prosecutor to act in a pre-
scribed manner or penalizes the prosecutor for acting in
his preferred manner.
  The defendant does not quarrel with our under-
standing of prosecutorial discretion. Instead, he argues
that in this case judicial discretion and prosecutorial
discretion may exist in harmony: while the prosecutor
has the discretion to refrain from charging a cocon-
spirator, the court has the discretion to consider the non-
charging as a relevant factor under § 3553(a). According
to the defendant, therefore, the exercise of judicial dis-
cretion at the sentencing phase may actually encompass
an examination into prosecutorial decisions at the
charging stage. We disagree. If we were to adopt the
defendant’s argument, a prosecutor would be effectively
required to always charge all coconspirators—regardless
of the wisdom of that choice—simply to prevent the
court from using the prosecutor’s discretion in one case
No. 10-1597                                            11

against the prosecutor in another case. This essentially
forces the hand of the prosecutor or penalizes him for
exercising his discretion in the manner that he chose,
leaving the prosecutor with no meaningful discretion
at all. The defendant’s theory thus allows not for the
harmonious exercise of two different discretions but
only one: the court’s. We therefore affirm the district
court, holding that consideration of the coconspirator’s
non-charging, non-conviction, and non-sentencing under
§ 3553(a) would improperly hinder the exercise of pros-
ecutorial discretion.


 C. The Reasonableness of the Defendant’s Sentence
  Alternatively, the defendant argues that he is entitled
to resentencing because (1) the district court inade-
quately explained his sentence, and (2) the district court
never ruled on whether the coconspirator’s lack of con-
viction could be considered under § 3553(a), which con-
stitutes a failure to rule on a non-frivolous argument.
These two arguments are related in that they both
suggest that the district court made too little findings
(or indeed none at all) when fashioning a proper sen-
tence for the defendant. Although the defendant never
articulated the legal theory under which these argu-
ments entitle him to resentencing, we presume he
intended to argue that his sentence is unreasonable,
12                                                  No. 10-1597

which we review for abuse of discretion. 1 Rita v. United
States, 551 U.S. 338, 351 (7th Cir. 2007).


     1.   The District Court’s Explanation of the Defen-
          dant’s Sentence
  When reviewing a sentence for reasonableness, we
must first ensure that the sentencing judge did not
commit any “significant procedural error, such as
failing to calculate (or improperly calculating) the Guide-
lines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sen-
tence based on clearly erroneous facts, or failing to ade-
quately explain the chosen sentence.” United States v.
Jackson, 547 F.3d 786, 792 (7th Cir. 2008) (quoting Gall v.
United States, 552 U.S. 38, 51 (2007)). Once we find
that the sentence is procedurally sound, we then deter-
mine whether the defendant’s sentence was substan-
tively reasonable. Id. at 792. In this case, the defendant
does not challenge the substantive reasonableness of
his sentence, and we will therefore address only


1
  We assume that the defendant intended to challenge his
sentence as unreasonable both because his briefs cite only
those cases dealing with the reasonableness of sentences and
because his argument proceeds as a typical reasonableness
challenge. Brief of Defendant-Appellant at 18-23; Reply Brief
of Defendant-Appellant at 2-6. See Rita v. United States, 551
U.S. 338, 351 (7th Cir. 2007); Gall v. United States, 552 U.S. 38,
46 (2007); United States v. Cunningham, 429 F.3d 673, 675-79
(7th Cir. 2005).
No. 10-1597                                               13

whether the district court followed proper sentencing
procedures.
  The defendant argues that the district court com-
mitted procedural error during the sentencing hearing
when it (1) refused to consider his coconspirator’s lack of
conviction under subparagraph (a)(6) and § 3553(a)
generally, and (2) failed to adequately explain his sen-
tence. Because we have already rejected the first argu-
ment (supra Part B), we turn directly to the defendant’s
second argument.
   At the time of sentencing, the judge is required to “state
in open court the reasons for its imposition of the par-
ticular sentence.” 18 U.S.C. § 3553(c); Rita, 551 U.S. at
356. The brevity or length of the judge’s explanation
depends on the circumstances of the case, but “when a
judge decides simply to apply the Guidelines to a par-
ticular case, doing so will not necessarily require
lengthy explanation.” Rita, 551 U.S. at 356. By articulating
reasons for the sentence, the sentencing court assures
itself, the public, and reviewing courts that the sen-
tencing process is a reasoned process. Id. at 358.
  Contrary to the defendant’s characterization of the
sentencing hearing, even a cursory glance at the record
reveals that the judge proffered many reasons for the
defendant’s sentence:
      In determining the sentence to impose, the court, of
    course, must take into account the sentencing fac-
    tors. . . . I have to take into account the seriousness
    of the offense, promote respect for the law, and the
    sentence must provide just punishment. The sentence
14                                              No. 10-1597

     must also provide a deterrent to crimes, not only
     to Mr. Scott but also to others. The public has to be
     protected from future crimes by this defendant,
     and hopefully the appropriate sentence will deter
     him in the future. . . .
       Taking that into account, I have sat here and looked
     at the innumerable number of letters, of course,
     that have come in on his behalf, but I have also, the
     court has also received letters from some of the
     victims, and those victims’ lives have been affected
     tremendously. . . .
       The letters that I’ve received from the family and
     friends and the certificates of the completion of
     courses that [the] defendant has taken while
     he’s [been] incarcerated indicate to this court that
     Mr. Scott has taken, fortunately, some meaningful
     steps towards realizing what he did was wrong,
     and that hopefully has begun to aid in his rehabilita-
     tion so that once he is released from incarceration
     he will not engage in this conduct again.
       The court simply, however, cannot impose a sen-
     tence on you, Mr. Scott, based solely on all the fa-
     vorable thoughts that were contained in all those
     letters. . . .
       In listening to everything I’ve heard this morning
     and reading all of the submissions, it’s clear that the
     offense is extremely serious. Mr. Scott, you bilked
     hundreds of thousands of dollars from innocent
     investors who trusted you. They entrusted their
     money in you. Unfortunately, your fraud was not
No. 10-1597                                             15

   just one single, simple act, but you had two
   schemes . . . .
     . . . The interesting thing about this and the sad
   thing about this whole situation is that this scheme
   was very thoughtfully put together and carried out.
   As I understand it, letters were sent to thousands
   upon thousands of individuals soliciting invest-
   ments in these two fraudulent schemes. False repre-
   sentations were made, and false promises were made.
Transcript of Sentencing Hearing, 46-47, United States
v. Scott, (2010) (No. 09 CR 548). The judge explicitly
acknowledged the importance of the defendant’s repen-
tance, family support, and scholastic achievements, but
she then explained why the defendant’s fraudulent
schemes were too serious to warrant a departure from
the advisory Guideline range. See United States v.
Williams, 425 F.3d 478 (7th Cir. 2005). We find this ex-
planation adequate because it explained why the
defendant was sentenced within the Guideline range,
albeit at the lowest possible end. To the extent that the
defendant faults the district court for failing to rule on
every § 3553(a) factor, it was not required to do so. See
United States v. Cutler, 259 Fed. Appx. 883, 888 (7th Cir.
2008). Instead, as required, the record as a whole
indicates that the judge heard and considered all the
arguments. Id.; Transcript of Sentencing Hearing, at 46-
60 (The judge stated that she had “heard it all.”); Cutler,
259 Fed. Appx. at 888. We therefore affirm the district
court on this issue, finding no procedural error.
16                                                   No. 10-1597

    2.     The District Court’s Rulings on Non-Frivolous
           Arguments
   When a defendant makes a non-frivolous argument
for imposing a sentence below the Guideline range, the
sentencing court will usually explain why it has re-
jected that argument. Rita, 551 U.S. at 357. See also
United States v. Kilgore, 591 F.3d 890, 893 (7th Cir. 2010)
(stating that “[i]n determining a reasonable sentence,
the district court need not comprehensively discuss all
of the 18 U.S.C. § 3553(a) factors, but must explain
its decision and address non-frivolous sentencing argu-
ments”) (citing United States v. Villegas-Miranda, 579 F.3d
798, 801 (7th Cir. 2009)); United States v. Cunningham, 429
F.3d, 679 (7th Cir. 2005). According to the defendant, he
is entitled to resentencing because the district court
failed to rule on a non-frivolous argument when it
refused to rule on whether it could consider the
coconspirator’s lack of conviction under § 3553(a). We
disagree.
  At best, the transcript of the sentencing hearing
reveals that Scott merely alluded to § 3553(a), often
bouncing between specific references to subpara-
graph (a)(6) and general references to § 3553(a)
with no apparent distinction.2 In response to the defen-


2
    Take for example the following exchange:
         Prosecutor: We’re going around and around, and I’ll just
         offer again the observation that [Brown] doesn’t count
         [under subparagraph (a)(6)] where she’s not a defendant
         who’s been charged in this case.
                                                    (continued...)
No. 10-1597                                                      17

dant’s cluttered arguments, the district court judge assured
counsel that she had “heard it all,” made some explicit
holdings, and explained the defendant’s sentence. Tran-
script of Sentencing Hearing, at 46-47, 60. This was suffi-
cient. The extent to which the court failed to make a more
explicit holding under § 3553(a), as the defendant ap-
parently desired, is a direct result of the defendant’s
failure to more clearly place his argument before the
district court. While the district court might have
been required to issue a more explicit ruling on
this issue had Scott more expressly raised it, Scott’s
veiled references to § 3553(a) did not obligate the
district court to address this issue more directly. Cf. Gall,
552 U.S. at 54 (explaining that where a party fails to raise



2
    (...continued)
       The Court: That’s my interpretation of it. In any event, are
       there any others?
      Defense Counsel: I will say it’s not mandatory that Your Honor
      count her under the 3553(a) factors, but you certainly should
      count her in determining what is a fair and reasonable
      sentence in this case.
      The Court: Okay. Are there any other legal issues that you
      would like to address?
      ....
      Prosecutor: I anticipate their 3553(a) arguments are coming,
      and I’ll wait and address those. I think on this other issue
      regarding subparagraph 6, the Court has indicated that it’s
      heard enough.
Id. at 30-31.
18                                              No. 10-1597

an issue, the judge is under no obligation to raise the
issue itself and then issue a ruling). Accordingly, we
find that although the defendant’s argument was not
frivolous, the district court sufficiently addressed the
defendant’s argument. We therefore affirm the district
court, finding that the court adequately ruled on
the defendant’s non-frivolous arguments and that the
defendant’s sentence was reasonable.


                   III. CONCLUSION
  The district court properly refused to consider the
defendant’s coconspirator argument under subpara-
graph (a)(6) because his coconspirator was never
convicted or sentenced. Likewise, the district court prop-
erly refused to consider the coconspirator’s lack of con-
viction under § 3553(a) because (1) the coconspirator’s
non-conviction was irrelevant, and (2) allowing the
court to use the prosecutor’s exercise of discretion in
the coconspirator’s case against him during the sen-
tencing phase of the defendant’s case would essentially
leave the prosecutor with no discretion at all. Finally,
the defendant’s sentence is reasonable because (1) the
district court adequately explained the defendant’s sen-
tence, taking into account all relevant factors, and (2) the
defendant’s references to § 3553(a) during the sentencing
hearing did not require the district court to issue a
more explicit ruling on the defendant’s § 3553(a) argu-
ment. Finding no error, we A FFIRM the defendant’s sen-
tence.
No. 10-1597                                             19

  W ILLIAMS, Circuit Judge, concurring. The sentencing
judge took Scott’s arguments into account and ade-
quately explained the reasons for the sentence she im-
posed, and the judgment should be affirmed for that
reason. I write separately to note my disagreement
with the unnecessary position the majority takes that a
district judge can never consider arguments relating to
an unindicted coconspirator under 18 U.S.C. § 3553(a).
The parties did not even brief that issue, and it is unnec-
essary to the resolution of this appeal.
  This is a straightforward case: Scott claims he made
an argument regarding his unindicted coconspirator that
was not taken into account by the judge as a § 3553(a)
consideration when it should have been. The conclusion
is also straightforward: Scott did fairly (if inartfully)
make such an argument under the rubric of § 3553(a),
the argument was not frivolous, and the judge ade-
quately addressed it. Having so ruled, there is no need
to go further and posit that sentencing courts can never
take an argument regarding an unindicted conspirator
into account under their broad § 3553(a) discretion.
   I concur in the judgment because I believe that Scott’s
arguments were adequately considered and addressed
by the district court under § 3553(a). The disposition of
this case does not hinge on any holding beyond that.




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