                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0335p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                     X
                               Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                      -
                                                      -
                                                      -
                                                          No. 05-4054
          v.
                                                      ,
                                                       >
 SAMUEL F. COLLINGTON,                                -
                              Defendant-Appellee. -
                                                     N
                      Appeal from the United States District Court
                     for the Northern District of Ohio at Cleveland.
              No. 04-00587—Kathleen McDonald O’Malley, District Judge.
                                            Argued: June 26, 2006
                                   Decided and Filed: August 31, 2006
            Before: MARTIN and GILMAN, Circuit Judges; SARGUS, District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: Robert J. Becker, ASSISTANT UNITED STATES ATTORNEY, Akron, Ohio, for
Appellant. Douglas G. Smith, KIRKLAND & ELLIS, Chicago, Illinois, for Appellee. ON BRIEF:
Robert J. Becker, ASSISTANT UNITED STATES ATTORNEY, Akron, Ohio, for Appellant.
Douglas G. Smith, KIRKLAND & ELLIS, Chicago, Illinois, for Appellee.
         MARTIN, J., delivered the opinion of the court, in which SARGUS, D. J., joined. GILMAN,
J. (pp. 6-11), delivered a separate dissenting opinion.
                                             _________________
                                                 OPINION
                                             _________________
         BOYCE F. MARTIN, JR., Circuit Judge. Samuel Collington pled guilty to possession with
intent to distribute more than fifty grams of crack cocaine, 21 U.S.C. § 841(a)(1), felon in possession
of a firearm, 18 U.S.C. § 922(g), and possession of a machine gun, 18 U.S.C. § 922(o). At
sentencing, the district court calculated an advisory guideline range of 188 to 235 months of
imprisonment, but determined that a variance was appropriate and sentenced Collington to 120
months, the statutory mandatory minimum for the charges he pled guilty to. The government now


        *
         The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of Ohio, sitting
by designation.


                                                         1
No. 05-4054           United States v. Collington                                               Page 2


appeals Collington’s sentence for reasonableness. Based on the following discussion, we affirm the
sentence imposed by the district court.
                                                   I.
         On August 10, 2004, Collington was pulled over for speeding in Canton, Ohio. As a result
of the traffic stop, Collington was arrested for driving without a valid driver’s license. A search of
Collington’s person incident to his arrest revealed fifty-three grams of crack cocaine hidden in his
waistband. Officers obtained a search warrant for Collington’s residence and found 200 grams of
crack cocaine, a pipe bomb, ammunition, and four firearms, including a loaded machine gun.
        Collington pled guilty to possession of over fifty grams of crack cocaine with the intent to
distribute, 21 U.S.C. § 841(a)(1), being a felon in possession of a firearm, 18 U.S.C. § 922(g), and
unlawful possession of a machine gun, 18 U.S.C. § 922(o). The plea agreement anticipated that
Collington’s offense level would be thirty-three and his criminal history to be a III, yielding an
advisory guidelines range of 168 to 210 months. Upon review of the presentence report, the district
court decided that Collington’s offense level was thirty-three and his criminal history was a IV,
resulting in an advisory guidelines range of 188 to 235 months.
         At Collington’s sentencing hearing, the district court undertook what it described as a “three-
step process.” The first step was to calculate the appropriate advisory guideline range, which the
district court did with no objection from either side to the resulting range of 188 to 235 months. The
district court then proceeded to the second and third steps of its analysis: determining whether a
variance from the guidelines range would be appropriate in this case and considering the section
3553(a) factors and the guidelines range to determine what sentence would be a “reasonable
sentencing option[] for this Defendant.”
        To aid the court in its decision-making process, it heard from Collington’s counsel and then
questioned Collington regarding his personal history and the severity of the crimes in question. The
court then decided to vary downward from the sentencing guidelines and impose a 120 month
sentence with the full five-year period of supervised release. The court felt that a downward
variance was justified given Collington’s personal history, his criminal history, and his age. The
government now appeals that sentence as being unreasonably low.
                                                  II.
         We review sentences for reasonableness. United States v. Webb, 403 F.3d 373, 383 (6th Cir.
2005). At the outset, it is worth noting that the district court in this case and the government in its
brief to this Court confused the statutory mandate with the appellate standard of review. “[A]
district court’s mandate is to impose ‘a sentence sufficient, but not greater than necessary, to comply
with the purposes’ of section 3553(a)(2). Reasonableness is the appellate standard of review in
judging whether a district court has accomplished its task.” United States v. Foreman, 436 F.3d 638,
644 n.1 (6th Cir. 2006) (emphasis in original).
        In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court invalidated the
mandatory use of the Sentencing Guidelines and held they are now “effectively advisory.” We have
held that “[o]nce the appropriate advisory Guideline range is calculated, the district court throws this
ingredient into the section 3553(a) mix.” United States v. McBride, 434 F.3d 470, 476 (6th Cir.
2006). Section 3553(a) instructs a district court to impose “a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in [section 3553(a)(2)].” 18 U.S.C. § 3553(a). The
3553(a)(2) factors which are to be considered when sentencing are the seriousness of the offense,
No. 05-4054               United States v. Collington                                                             Page 3


deterrence of future crimes, protection of the public from future crimes   of the defendant, and
providing the defendant with needed training or correctional treatment.1 18 U.S.C. § 3553(a)(2).
       Because the Sentencing Guidelines are now advisory, a district court is permitted to vary
from those guidelines in order to impose a sentence which fits the mandate of section 3553(a). See
McBride, 434 F.3d at 476. Although we have held that a sentence within the guidelines is
presumptively reasonable, see United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006), this says
nothing about sentences outside the advisory range. As we said in Foreman, “Williams does not
mean that a sentence outside of the Guidelines range – either higher or lower – is presumptively
unreasonable. It is not.” 436 F.3d at 644. Rather, our reasonableness review is in light of the
3553(a) factors which the district court felt justified such a variance.
         We have now split our reasonableness review into two inquiries: procedural reasonableness
and substantive reasonableness. A sentence may be procedurally unreasonable if “the district judge
fails to ‘consider’ the applicable Guidelines range or neglects to ‘consider’ the other factors listed
in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence
without such required consideration.” Webb, 403 F.3d at 383. A sentence may be considered
substantively unreasonable when the district court “select[s] the sentence arbitrarily, bas[es] the
sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors or giv[es] an
unreasonable amount of weight to any pertinent factor.” Id. at 385. It is in this light that we review
Collington’s sentence, specifically the district court’s downward variance from the advisory
guidelines range.
        The district court, in this case, varied downward from the guideline range of 188 to 235
months to give Collington a sentence of 120 months.2 The district court explained at the sentencing
hearing that such a variance was justified in this case because of a number of factors which made
Collington’s case an outlier and which the guidelines did not account for. The district court found
that, despite Collington’s criminal history being at a IV, Collington “has never been in custody for
any substantial period of time,” having only been imprisoned for seven months before this crime.
The district court also noted that the criminal history did not reflect that this incident was the first
time that this quantity of drugs and guns had been found in Collington’s possession.
       As we have explained before, “[p]rior to Booker, sentences outside of the Guideline range
were severely limited; now, ‘with greater latitude’ a ‘district court need only consider [the Guideline
range] along with its analysis of the section 3553(a) factors.’” United States v. Martin, 438 F.3d
621, 641 (6th Cir. 2006) (Martin, J., concurring) (quoting McBride, 434 F.3d at 476). Additionally,
         [i]n appropriate cases . . . a district court may conclude that the criminal history
         category overstates the severity of the defendant’s criminal history or that a lower
         sentence would still comply with and serve the mandates of section 3553(a). That is,
         a district court may look beneath the specific criminal history score
and advisory guideline calculation to reach the appropriate sentence. Id. at 642.


         1
          The district court, in sentencing, should also consider the nature and circumstances of the offense, the
characteristics of the defendant, the kinds of sentences available, the sentencing guidelines range, policy statements from
the Sentencing Commission, the need to avoid sentencing disparities, and the need to provide restitution to the victims.
See 18 U.S.C. § 3552(a)(1), (3)-(7).
         2
          The dissent notes that this variance is 36% below the low end of the guidelines range. Dissent Opn. at 1, 6,
11. Such analysis has no place in a review for reasonableness. There is no mathematical percentage or formula that
defines what reasonableness is. Appellate review simply can not be reduced to such cold calculations. It is those very
calculations that Booker and its progeny attempted to remove from the federal sentencing process.
No. 05-4054            United States v. Collington                                                Page 4


         Finally, the district court noted Collington’s family history, which included his father being
murdered in their home when Collington was nine and losing his mother to cancer two years later.
As a result, the district court ordered Collington to undergo mental health counseling. Also, the
district court required that after Collington’s imprisonment, he be under supervised release for five
years, including aggressive drug testing during that time.
        We find this sentence to be reasonable. The district court took the time to consider
arguments from defense counsel, the government, and questioned Collington himself about the
current charges, his history, and his desire to reform. The district court’s explanation for this
variance from the guideline range is a reasonable one. First, the district court felt that the
Sentencing Guidelines did not accurately reflect Collington’s actual criminal history. Additionally,
the district court appeared to be persuaded by the fact that Collington had only previously served
seven months in prison before these charges and was an ideal candidate for reform.
         While the district court did not explicitly name each of the 3553(a) factors that it was using
to arrive at Collington’s sentence, a reasonable sentence based on consideration of the factors does
not require a rote listing. United States v. Vonner, – F.3d –, No. 05-5295 (6th Cir. June 29, 2006)
(citing United States v. Williams, 436 F.3d 706, 708-09 (6th Cir. 2006) in that this Court does not
require “the ritual incantation of these factors to affirm a sentence.”). In this case, the record shows
a deep consideration of the seriousness of the offense which the district court referred to the crime
as “heinous” and “particularly offensive.” Next, the district court considered the history and
characteristics of the defendant. In the court’s sentencing opinion, it looked beyond the criminal
history number and reviewed each of Collington’s previous crimes and how those affected its
decision. See Martin, 438 F.3d at 642 (“a district court may conclude that the criminal history
category overstates the severity of the defendant's criminal history”). It then reviewed Collington’s
personal history, including the early deaths of his parents and the mistreatment from his other
relatives who “apparently were more interested in the federal benefits he and his brother received
than in the brothers’ welfare.” Dist. Ct.’s Opinion of Aug. 1, 2005 at 2-3. Finally, the district court
considered the need for the sentence imposed by emphasizing its belief that a 120 month sentence
is sufficient enough to reflect the crimes committed while allowing for the possibility that Collington
may reform and after his release from prison, when he is in his mid-thirties, may go on to a
productive life in society. See Martin, 438 F.3d at 642.
         Given this detailed and in-depth analysis of Collington’s sentence by the district court in the
light of all relevant sentencing factors, this sentence appears to be procedurally and substantively
reasonable. While a large variance requires a greater explanation, that standard was met here. The
district court explained its analysis in reaching this sentencing determination and its analysis is
sound. This Court must show some level of deference to the district court in sentencing, especially
when that district court provides this Court with a factor-by-factor consideration of the relevant
section 3553(a) factors. We have held that “we may conclude that a sentence is unreasonable when
the district judge fails to ‘consider’ the applicable guidelines range or neglects to ‘consider’ the other
factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate
sentence without such consideration.” Webb, 403 F.3d at 383. Neither of these situations is the case
here as the district court considered both the guidelines range and the 3553(a) factors. Its final
sentence was not random, but a reflection of its consideration of both.
        The dissent, in arguing that Collington’s sentence was unreasonable, quotes repeatedly from
the district court’s oral and written decision in order to show why Collington should not have
received such a lenient sentence. E.g., Dissent Opn. at pg. 6 (noting the district court’s
characterization of the offenses as “serious” and “particularly offensive”); Dissent Opn. at pg. 6
(stating that the district court’s “normal inclination would be to sentence at the high to mid point
No. 05-4054                United States v. Collington                                                               Page 5


range,” that the sentence was “a gift,”3 and that the district court said “[p]art of me thinks putting
you away for 20 years would make more sense”). While the dissent finds these selective quotations
to weaken the reasonableness of district court’s final sentence, we feel these statements in fact
bolster the reasonableness of the sentence. It is the district court’s very consideration of both the
reasons for leniency and for a harsh penalty that makes its explanation a reasonable one and the
sentence itself reasonable. The district court did not ignore these facts, but plainly had them in the
front of its mind when it chose the sentence for Collington.
        If the district court had failed to explicitly mention these factors, then that failure would
strongly support a finding that the sentence was unreasonable. Therefore, the dissent’s attempt to
use the district court’s explicit mention of these factors as cause to find the sentence unreasonable
seems antithetical to our review for reasonableness. When the dissent asks for a district court to be
“internally consistent” in its explanation, Dissent Opn. at 6, it appears to request a one-sided
explanation from a district court: leniency or harshness, not both. However, the district court’s
consideration of both sides strengthens a sentence’s reasonableness; it does not diminish it.
         Additionally, the district court did not “select[] the sentence arbitrarily, bas[e] the sentence
on impermissible factors, fail[] to consider pertinent § 3553(a) factors, or giv[e] an unreasonable
amount of weight to any pertinent factor.” Id. at 385 To argue that the district court in this case
selected Collington’s sentence arbitrarily is to wholly and unfairly dismiss the pages of analysis
conducted by the district court including discussions with Collington and a factor-by-factor analysis
in its sentencing opinion. The district court did not use an “impermissible factors” as it couched all
of its reasons for Collington’s sentence in the factors listed in section 3553(a). The district court,
also, did not assign an unreasonable amount of weight to any of the factors which it considered. The
district court did rely heavily on its belief that Collington is an ideal candidate for reform. However,
that belief shows a consideration of not one factor, but arguably all of the factors, including the
severity of the offense and the history and characteristics of the defendant. Therefore, we find
Collington’s sentence to be substantively reasonable.
         When a district court considers the relevant 3553(a) factors in-depth and reaches its
determination that the appropriate sentence varies outside the advisory guidelines range, we are very
reluctant to find the sentence unreasonable. Doing so would essentially amount to substituting our
judgment for the district court’s as to how long the defendant should serve. We ought to give the
district court the benefit of the doubt in these circumstances unless the variance is inadequately
explained or substantively unreasonable. United States v. Buchanan, 449 F.3d 731, 739-740 (6th
Cir. 2006) (Sutton, J., concurring).
                                                            III.
         For these reasons, we affirm the district court’s sentence as being reasonable.




         3
           While the dissent criticizes the district court for giving Collington “a gift,” this is no reason for this Court to
find Collington’s sentence unreasonable. What may be overlooked in appellate review is the fact that the district court
does not issue its sentencing remarks in a vacuum or exclusively with this Court’s review in mind. These comments are
delivered directly to the defendant, often times with family members present. We should not begin persecuting the
district courts for any niceties they may state in communicating its sentence to the defendant. Such a practice would only
lead to depersonalizing an already difficult situation.
No. 05-4054           United States v. Collington                                               Page 6


                                       ___________________
                                            DISSENT
                                       ___________________
        RONALD LEE GILMAN, Circuit Judge, dissenting. Today’s decision marks the first time
in a published opinion that this court has sustained as reasonable a district court’s decision to vary
downward from the applicable Sentencing Guidelines range. The majority takes this significant step
in a case where the mandatory-minimum sentence imposed is 36% below the low end of the
applicable Guidelines range, is less than what a first-time offender charged with these offenses
would have received under the Guidelines, and effectively erases all punishment for the two serious
gun charges to which the defendant pled guilty. Moreover, the district court based the variance
sentence, which it acknowledged amounted to “a gift,” on factors discouraged by the Sentencing
Commission and on the speculative possibility that Samuel Collington’s lack of significant jail time
for his prior offenses made him amenable to rehabilitation. Applying the reasonableness inquiry
articulated in United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005), I would vacate Collington’s
sentence and remand for resentencing. I therefore respectfully dissent.
                                        I. BACKGROUND
        At first glance, the majority opinion does not set off any alarm bells. Those bells start to
ring, however, when one considers the disconnect between the district court’s statements at the
sentencing hearing (and in its written sentencing opinion) and the court’s ultimate sentencing
determination. Because the majority provides only a truncated version of the sentencing
proceedings below, and because a fuller understanding of those proceedings is essential to our
reasonableness review, I will begin with a more complete account of the district court’s analysis.
        The district court, as the majority correctly notes, described its role in sentencing Collington
as “a three-step process” in which the court would first determine the advisory Guidelines range,
then “determine whether there is a departure that would be appropriate within the meaning of the
guideline itself,” and conclude by deciding whether, in light of the other factors set forth in 18
U.S.C. § 3553(a), “this sentencing range that results from the guidelines calculations presents the
Court with reasonable sentencing options for this Defendant in these circumstances, and, if so, where
within the sentencing range this Defendant should be placed.” After Collington’s counsel asked for
a downward variance from the Guidelines range—despite a provision in the plea agreement that
barred such a request—the district court rendered its sentencing decision.
        The court began by highlighting the “serious” and “particularly offensive” nature of the
charges to which Collington had pled guilty, noting that with an arsenal of firearms that included
a machine gun, Collington was “just setting people up to get hurt.” Continuing to address
Collington, the court stated: “I guess I don’t understand how you think you are going to end up
differently than your father did when you live like this. Are you trying to get yourself killed?”
Then, despite recognizing that its “normal inclination would be to sentence at the high or mid point
range,” the district court said that “maybe ten years”—the mandatory minimum sentence required
by statute—“is enough.” That sentence, according to the court, was warranted because Collington
had previously “only been in custody for a period of several months and hasn’t had an opportunity
to reflect upon the lifestyle that he was undertaking.” The court also emphasized that the crimes to
which Collington had pled guilty were more serious than the previous crimes that he had committed,
and that this conviction marked “the first time that these kind of quantities, at least that law
enforcement is aware of, this quantity of drugs [had been] transferred by this Defendant.”
       Significantly, the district court recognized that the sentence that it was imposing was “a gift.”
Speaking candidly, the court acknowledged that it was sentencing the defendant “with some
No. 05-4054           United States v. Collington                                              Page 7


hesitation,” and that “[p]art of me thinks putting you away for 20 years would make more sense.”
The court nevertheless materially varied below the calculated Guidelines range and imposed the
statutory mandatory minimum term of 120 months in prison, describing the sentence as “substantial”
and “reasonable . . . for this Defendant in these circumstances.”
         After the government noted its objection, the district court issued a written Opinion and
Order further explaining its sentencing decision. Like the oral ruling, the written opinion
characterized the nature of the offense as “heinous,” called the defendant “currently a danger to
society,” and noted “grave concern” over the defendant’s history of selling crack. The court
nevertheless described the case as “unique” because (1) Collington’s relatively high criminal history
score was based on “misdemeanor possession charges brought against him at a very young age,” a
felony conviction for dog fighting, and the fact that three of the charged offenses occurred while he
was on parole for the dog-fighting conviction; (2) Collington’s only violent offense arose out of a
fight in prison; and (3) Collington’s one term of imprisonment was a relatively short seven months.
This latter point was especially important to the district court, which reasoned that a sentence of ten
years would adequately “allow for serious rehabilitative efforts” and “provide the defendant with
at least the possibility of a future once counseling and education have been received.” The court
concluded: “As his first real custody term, ten (10) years seems sufficient.”
                        II. REASONABLENESS OF THE SENTENCE
        In United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006), this court explained that
sentences outside the Guidelines range, although not entitled to a presumption of reasonableness,
are not “presumptively unreasonable” either. (Emphasis in original.) But a sentence becomes
unreasonable when a district court “select[s] the sentence arbitrarily, bas[es] the sentence on
impermissible factors, fail[s] to consider pertinent § 3553(a) factors, or giv[es] an unreasonable
amount of weight to any pertinent factor.” Webb, 403 F.3d at 385. I believe that the district court
in the present case imposed an unreasonable sentence by relying on considerations discouraged by
the Sentencing Commission, by declining to consider the Commission’s policy statements (which
are a factor enumerated in § 3553(a)), and, above all, by giving “an unreasonable amount of weight”
to the speculative possibility that Collington might be especially amenable to rehabilitative efforts.
See id.
        The district court decided to impose a sentence that it acknowledged was “a gift”
notwithstanding the seriousness of the offenses charged and Collington’s checkered criminal past.
I do not want to make too much of this one statement, but it is striking. The district court’s task is
decidedly not to give out “gifts;” rather, the court must consider all of the factors in § 3553(a) and
impose “a sentence sufficient, but not greater than necessary, to comply with the purposes of section
3553(a)(2).” Foreman, 436 F.3d at 644 n.1 (quotation marks omitted); see also United States v.
Ferguson, - - F.3d - -, 2006 WL 2265468, at *7 (6th Cir. Aug. 9, 2006) (noting that “this court has
highlighted” the parsimony provision of § 3553(a) “as the guidepost for sentencing decisions
post-Booker”). In my view, the record fully supports the government’s contention that “Collington
is about the last person entitled to a substantial downward deviation,” and that the mandatory
minimum sentence chosen by the district court significantly understates the seriousness of his crimes
and his criminal history. The district court itself appeared at times to agree, commenting that it
would normally choose a sentence “at the high or mid point range” of the Guidelines, and that it
imposed the sentence “with some hesitation.”
        What led the district court to a different conclusion—and what I believe constitutes its
principal error—was the undue weight that it gave to the fact that Collington’s one and only prison
term of seven months was relatively short, and its willingness to speculate on the possibility that he
would therefore be rehabilitated more quickly. See Webb, 403 F.3d at 385 (noting that a sentence
may be unreasonable where the district court “giv[es] an unreasonable amount of weight to any
No. 05-4054            United States v. Collington                                                Page 8


pertinent factor”); see also United States v. Cage, 451 F.3d 585, 595 (10th Cir. 2006) (reversing a
dramatic downward variance and explaining that “[t]he problem with the sentencing decision . . .
is not in the consideration of [the § 3553(a) factors]; it is in the weight that the district court placed
on them”).
       The district court in the present case repeatedly emphasized that it was choosing a lower
sentence “because the Defendant has never been in custody for any substantial period of time,” and
had “never had the benefit of true rehabilitative efforts[.]” Although providing “the defendant with
needed educational or vocational training . . . or other correctional treatment in the most effective
manner” is undoubtedly a proper factor for the sentencing court to consider, see 18 U.S.C.
§ 3553(a)(2)(D), this factor in the present case provides the sole basis for Collington’s variance
sentence, which is 36% below the minimum of the recommended Guidelines range.
        The majority acknowledges that large variances of this ilk “require[] a greater explanation.”
Maj. Op. at 4. I agree whole-heartedly that this is a correct statement of the law, one that finds
support in the decisions of this court and virtually every other circuit. See United States v. Davis,
- - F.3d - - , 2006 WL 2335240 (6th Cir. Aug. 14, 2006) (joining “every other court of appeals to
consider the question” in holding that “the farther that a judge’s sentence departs from the guidelines
sentence . . . the more compelling the justification based on factors in section 3553(a) must be”)
(citation and quotation marks omitted).
        But I part ways with the majority in applying this legal principle to the facts of the present
case. “A greater explanation,” in my view, is not simply a longer explanation or one that is “not
random.” Maj. Op. at 4. Instead, it is an explanation that is both internally consistent and that
reflects due consideration of the delicate balance that the various factors enumerated in § 3553(a)
aim to strike. I do not quarrel with the majority’s contention that the district court provided an
extensive explanation of its sentencing decision, in both oral and written form. Nevertheless, I
cannot overlook the irreconcilable tension between the district court’s emphasis on the “heinous”
nature of Collington’s offenses—and in particular the danger that those crimes posed to
society—and its ultimate decision to give him the most lenient sentence possible.
        I find this court’s recent decision in United States v. Davis, - - F.3d - - , 2006 WL 2335240
(6th Cir. Aug. 14, 2006), to be particularly instructive. After the defendant in Davis was convicted
by a jury on two counts of bank fraud, the district court calculated an advisory Guidelines range of
30 to 37 months. Id. at *1. Relying principally on the defendant’s advanced age—he was 70 at the
time of sentencing—and on the fact that the crimes had taken place 14 years earlier, the district court
sentenced Davis to a total of one day in prison, three years of supervised release, and one hundred
hours of community service. Id. at *3. This court recognized that the sentencing proceedings
satisfied all of the procedural requirements set forth by its post-Booker caselaw, but nonetheless
concluded that the sentence imposed was substantively unreasonable. The Davis court explained
that neither of the factors emphasized by the district court served to justify the “extraordinary
variance,” and that the “extreme” nature of the sentence left “no room to make reasoned distinctions
between Davis’s variance and the variances that other, more worthy defendants may deserve.” Id.
at *5, *7.
         Although the downward variance in the present case is not as dramatic in percentage terms
as that in Davis, I believe that the same conclusion follows. In Davis, the district court sentenced
the defendant to what was effectively the minimum amount of jail time that could be served. The
district court in the present case did the same thing, sentencing Collington to the mandatory
minimum required by statute. And while the numbers are certainly different—one day versus ten
years—the principle is identical. Specifically, just as the sentence in Davis left “no room to make
reasoned distinctions between Davis’s variance and the variances that other, more worthy defendants
may deserve,” id. at *7, the sentence here does little to distinguish between defendants subject to
No. 05-4054           United States v. Collington                                               Page 9


a high Guidelines range solely because of the large quantity of drugs they possessed and others, like
Collington, who have engaged in additional types of dangerous conduct. If a repeat drug offender
who also possesses an arsenal of dangerous weapons is entitled to the statutory minimum, one
wonders how the district court could justify sentencing other drug offenders who forego such
weaponry to anything beyond the same mandatory minimum.
         Indeed, the fact that the sentence chosen effectively erases the serious gun charges to which
Collington pled guilty is among the most troubling aspects of the district court’s sentence. The
sentence prescribes a term of imprisonment 31 months below what the Guidelines minimum would
have been had Collington pled guilty only to the drug charges. This result undermines the statutory
goal of imposing a sentence that “reflect[s] the seriousness of the offense[.]” 18 U.S.C.
§ 3553(a)(2)(A). Nullifying the effect of the gun charges also flies in the face of the district court’s
earlier statements expressing outrage at the types of weapons found at Collington’s residence—“I
mean, look at these firearms you had. A machine gun? I mean, you were just setting people up to
get hurt.” In short, the substantial downward variance based almost exclusively on the defendant’s
speculative potential for rehabilitation was unreasonable because it attached no consequences to
Collington’s possession of a loaded sawed-off pump-action shotgun, a loaded fully automatic assault
rifle, a pipe bomb, two more semi-automatic handguns, and many rounds of ammunition.
        To the extent that the district court’s decision to opt for leniency also stemmed from concerns
over Collington’s criminal history score, a comparison with traditional Guidelines-based departures
suggests that, at a minimum, the magnitude of the downward variance was unreasonable. This court
has taken the position that Guidelines-based departures remain viable after Booker and that
“Guideline departures are still a relevant consideration for determining the appropriate Guideline
sentence.” United States v. McBride, 434 F.3d 470, 477 (6th Cir. 2006); see also United States v.
Matheny, 450 F.3d 633, 641 (6th Cir. 2006) (upholding as reasonable a sentence that included a 6-
month upward departure under the Guidelines). Although the district court sentenced Collington
before McBride was decided, it presciently indicated that it would consider the availability of
departures under the Guidelines before deciding whether to impose a variance sentence. The court
did not, however, follow through with its plan.
         Section 4A1.3 of the Guidelines permits a district court to depart downward where “reliable
information indicates that the defendant’s criminal history category substantially over-represents
the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit
other crimes.” The district court could have assuaged its concern that Collington’s “criminal history
is not typical of that normally seen when defendants score that high on the criminal history scale,”
by moving down to the criminal history category that it believed appropriate. Had it followed this
path, however, the lowest sentence within the Guidelines range—assuming a criminal history
category of I—would still have been 15 months above the 120-month sentence actually imposed.
        The downward variance thus left Collington with a sentence more lenient than the one that
he would have received if he were a first-time offender, and also contravened the former prohibition
against departing below the Guidelines range for Criminal History Category I. See U.S. Sentencing
Guidelines Manual § 4A1.3(b)(2) (“A departure below the lower limit of the applicable guideline
range for Criminal History Category I is prohibited.”); id. § 4A1.3 n.3 (explaining that such
departures are barred because “the lower limit of the guideline range for Criminal History Category
I is set for a first offender with the lowest risk of recidivism”). Even if a sentence below the
Guidelines range was appropriate, the district court’s downward variance was unreasonable in its
magnitude under these circumstances because it led to a sentence below that which would have been
imposed on first-time offenders under the Guidelines.
        In reaching this conclusion, I am not reading McBride as obligating the district courts in all
cases to consider Guidelines-based departures before choosing a variance sentence. Other circuits
No. 05-4054            United States v. Collington                                                 Page 10


have so held, but this court has not. See United States v. Moreland, 437 F.3d 424, 432 (4th Cir.
2006) (holding that, before it “elect[s] to impose a non-guideline sentence,” a district court “should
first look to whether a departure is appropriate based on the Guidelines Manual or relevant case
law”). But where the considerations animating a variance sentence are the same ones that would
justify a Guidelines-based departure, and the district court varies beyond even the maximum
possible departure under the Guidelines, it should be required to explain what prompted a variance
of that degree. In the present case, therefore, the problem is not that the district court failed to
consider the availability of a Guidelines-based departure, but instead that the court dropped to the
10-year statutory minimum without adequately explaining why such a substantial variance was
warranted. Cf. Webb, 403 F.3d at 383 (noting that a sentence may be unreasonable where the court
“simply selects what the judge deems an appropriate sentence”).
         The district court’s final error was its failure to consider all of the pertinent factors listed in
§ 3553(a). See id. at 385 (explaining that a failure “to consider pertinent § 3553(a) factors” may
constitute unreasonableness). Indeed, the court stated in its written opinion that it believed “[o]nly
the first three sentencing factors listed under 18 U.S.C. § 3553(a) and the Sentencing Guidelines are
relevant.” Included in the remaining statutory factors that the district court overlooked are
“pertinent policy statement[s]” issued by the Commission. See 18 U.S.C. § 3553(a)(5); see also
United States v. Jones, 445 F.3d 865, 869 (6th Cir. 2006) (noting that 18 U.S.C § 3553(a)(5)
“requires the district court to consider any relevant policy statements in determining the sentence
to be imposed”); United States v. Rattoballi, 452 F.3d 127, 133 (2d Cir. 2006) (“[I]n discharging our
duty to review sentences for reasonableness, we are required to consider any pertinent policy
statements issued by the Sentencing Commission or the Congress . . . .”).
        Policy statements applicable to the present case include two that discourage basing a
departure on the age or troubled upbringing of a defendant. See U.S. Sentencing Guidelines Manual
§ 5H1.1 (“Age (including youth) is not ordinarily relevant in determining whether a departure is
warranted.”); id. § 5H1.12 (“Lack of guidance as a youth and similar circumstances indicating a
disadvantaged upbringing are not relevant grounds in determining whether a departure is
warranted.”). Despite these policy statements, the district court appears to have placed great weight
on the “very young age” at which Collington committed his other crimes, his “difficult childhood,”
the death of his parents, and the fact that he “was bounced among relatives, some of whom
apparently were more interested in the federal benefits he and his brother received than in the
brothers’ welfare.”
         This is not to say that district courts are absolutely barred from basing a variance sentence
on factors that the Guidelines either discouraged or prohibited as bases for departures. The decision
in United States v. Jackson, 408 F.3d 301, 305 n.3 (6th Cir. 2005), left that issue open, allowing the
district court on remand the option of “address[ing] these provisions and decid[ing] what weight,
if any, to afford them in light of Booker.” This court’s decision in Davis, issued after we heard oral
argument, likewise acknowledged that, “[i]n an appropriate case,” a district judge may have “a freer
hand to account” for a factor disapproved of by the Commission’s policy statements. See -- F.3d --,
2006 WL 2335240, at *6. But see Rattoballi, 452 F.3d at 134 (“A non-Guidelines sentence that a
district court imposes in reliance on factors incompatible with the Commission’s policy statements
may be deemed substantively unreasonable in the absence of persuasive explanation as to why the
sentence actually comports with the § 3553(a) factors.”). The Davis court nonetheless held that the
reference to the defendant’s old age did not suffice to justify a dramatic downward variance. - - F.3d
- -, 2006 WL 2335240, at *7. Assuming that the district court in the present case would continue
to consider Collington’s age and upbringing relevant in crafting a sentence, we should at a minimum
order a remand so that the district court can explain what weight it accords those factors and why
those factors suffice to justify a variance sentence of this magnitude.
No. 05-4054           United States v. Collington                                              Page 11


         Finally, I am not persuaded by the majority’s comment that appellate courts “are very
reluctant to find [sentences] unreasonable” because “[d]oing so would essentially amount to
substituting our judgment for the district court’s as to how long . . . defendant[s] should serve.” Maj.
Op. at 5; see also United States v. Crisp, - - F.3d - - , 2006 WL 1867754, at *4 (11th Cir. July 7,
2006) (acknowledging that reasonableness review is deferential, but opining that “[t]here is . . . a
difference between deference and abdication”). But every time that an appellate court overturns a
discretionary ruling by a district court, it is in effect “substituting [its] judgment” for that of the
district judge. Our system of appellate review not only tolerates this practice, but requires it,
refusing to convert appellate courts into nothing more than rubber stamps. Cf. Dunphy v. McKee,
134 F.3d 1297, 1300 (7th Cir. 1998) (noting that even “abuse of discretion review is not the same
thing as a rubber stamp”). Where, as here, nothing else in the record supports either an upward or
a downward deviation from what the district court acknowledged would normally be the appropriate
sentencing range, I believe that giving excessive weight to Collington’s uncertain potential to benefit
from rehabilitative efforts amounts to precisely the type of unreasonableness contemplated by this
court in Webb. See 403 F.3d at 385.
        In sum, I believe that the sentence in the present case should be reversed despite the
generally deferential nature of reasonableness review. Cf. United States v. Gall, 446 F.3d 884, 889
(8th Cir. 2006) (describing reasonableness review as “a standard akin to our traditional review for
abuse of discretion”) (citation and quotation marks omitted). Even though district courts should
certainly be given “the benefit of the doubt in . . . their sentencing determinations,” United States
v. Buchanan, 449 F.3d 731, 741 (6th Cir. 2006) (Sutton, J., concurring), I do not believe that they
should be given carte blanche authority to ignore the judgment of Congress, the Sentencing
Commission, and, as in the present case, their own intuitive inclination. They should, at the very
least, be discouraged from employing their new discretion to award “a gift” to a defendant whose
primary redeeming attribute is the speculative possibility that he might be amenable to rehabilitation.

                                        III. CONCLUSION
       For all of the reasons set forth above, I would hold that Collington’s sentence is
unreasonable. I therefore respectfully dissent from the majority’s contrary disposition.
