                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                 v.                              No. 05-4274
SYNINA LAVEL CLARK,
              Defendant-Appellee.
                                        
            Appeal from the United States District Court
         for the Eastern District of Virginia, at Alexandria.
                Leonie M. Brinkema, District Judge.
                            (CR-04-401)

                      Argued: October 28, 2005

                      Decided: January 12, 2006

        Before LUTTIG, MOTZ, and KING, Circuit Judges.



Vacated and remanded by published opinion. Judge Luttig wrote the
opinion. Judge Motz wrote a separate opinion concurring in the judg-
ment. Judge King wrote a separate opinion concurring in the judg-
ment.


                             COUNSEL

ARGUED: Michael James Elston, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellant. Matthew William Greene, SMITH & GREENE,
P.L.L.C., Fairfax, Virginia, for Appellee. ON BRIEF: Paul J.
McNulty, United States Attorney, Alexandria, Virginia, for Appellant.
2                      UNITED STATES v. CLARK
                             OPINION

LUTTIG, Circuit Judge:

   Defendant-appellee, Synina Clark, was convicted in federal court
for the federal crime of conspiring to distribute crack cocaine, which
crime she committed in Virginia. The United States Sentencing
Guidelines provided that she be sentenced to between 46 and 57
months. The district court sentenced Clark to eight months instead,
according "great weight" to the fact that Clark would have received
a much lower sentence for a comparable state crime in Virginia.

  Because the district court either failed to consider or considered
improperly the need to avoid unwarranted sentencing disparities
among federal defendants as required by 18 U.S.C. § 3553(a)(6), the
sentence imposed by the district court is vacated and the case is
remanded for resentencing.

                                  I.

   Defendant Clark pled guilty to conspiring to distribute crack
cocaine in violation of 21 U.S.C. § 846. J.A. 107. In a sentencing pro-
ceeding on February 4, 2005, the district court determined that the
Sentencing Guidelines range for Clark’s offense was 46 to 57 months.
Id. at 96-97. However, rather than sentence Clark to a term of impris-
onment within this range, the district court requested supplemental
briefing on what the approximate sentencing range for Clark would
have been if she had been convicted of a comparable state crime in
Virginia. Id. at 39-42. In its supplemental briefing, the government
claimed that the state sentencing range would have been 36 to 49
months. Id. at 77. For her part, Clark agreed that this would have been
the range under the Commonwealth’s guidelines, id. at 60, but con-
tended that she could have credibly argued in state court that she
should be incarcerated for only 6 to 12 months, and have the remain-
der of her sentence suspended, id. at 59.

  At the second sentencing hearing, the district court, in addition to
considering the conflicting positions in the supplemental briefs, took
unsworn testimony from the federal probation officer in which the
                       UNITED STATES v. CLARK                         3
officer said that an unidentified state probation officer had estimated,
based on only the "general facts" of the case, that the defendant would
have received a minimum of six months’ incarceration. See id. at 97-
98. In the end, the district court gave "great weight to what the [fed-
eral] probation officer ha[d] found from one of her state colleagues,"
id. at 100, and sentenced the defendant to eight months in prison, id.
at 102. The instant appeal followed.

                                  II.

   Although United States v. Booker, 125 S. Ct. 738 (2005), rendered
the Federal Sentencing Guidelines advisory, the Supreme Court set
forth in Booker a number of requirements with which federal district
courts must still comply when sentencing. We have described those
steps as follows:

    In the wake of Booker . . . the discretion of a sentencing
    court is no longer bound by the range prescribed by the
    guidelines. Nevertheless, a sentencing court is still required
    to "consult [the] Guidelines and take them into account
    when sentencing." Consistent with the remedial scheme set
    forth in Booker, a district court shall first calculate (after
    making the appropriate findings of fact) the range prescribed
    by the guidelines. Then, the court shall consider that range
    as well as other relevant factors set forth in the guidelines
    and those factors set forth in [18 U.S.C.] § 3553(a) before
    imposing the sentence. If the court imposes a sentence out-
    side the guideline range, it should explain its reasons for
    doing so.

United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005) (emphases
added) (citations omitted) (citing Booker, 125 S. Ct. at 764-67). Of
relevance to this case, district courts must consider, pursuant to 18
U.S.C. § 3553(a)(6), "the need to avoid unwarranted sentence dispari-
ties among defendants with similar records who have been found
guilty of similar conduct."

   The question before us is whether the district court complied with
the requirement of section 3553(a)(6) when it sentenced Clark.
4                       UNITED STATES v. CLARK
   If the district court considered the need to avoid unwarranted sen-
tencing disparities, it did so in the following statement from the
bench:

        All right. The goal behind federal sentencing guidelines
     — and it’s a very good goal — is to try to reduce sentence
     disparity. Now, that’s a great goal. The reality that I’ve
     addressed over years from the bench is that it creates all
     kinds — the goal is wonderful, but how you get to that goal
     is the problem, and the federal sentencing guidelines in my
     view really have not achieved that goal.

        And so now that we are working in an advisory environ-
     ment, while I think the guidelines are very helpful because
     it gives the Court one view of a certain standard, in areas
     such as this, where there’s concurrent jurisdiction, I think it
     is absolutely appropriate for the Court to also look at what
     a similar type of — what would happen to a defendant had
     the defendant been prosecuted in the state system, and in
     this case, that analysis is particularly useful because, in fact,
     this case apparently began as a state case.

J.A. 98-99. From this brief statement, it is unclear to us whether the
district court considered at all the need to avoid sentencing disparities,
as required under section 3553(a)(6); whether it considered this factor
but mistakenly believed Congress’ concern to be with avoidance of
sentencing disparities between federal and state defendants; or
whether it considered the need to avoid sentencing disparities among
federal defendants but concluded that this need should yield to an
interest in avoiding sentencing disparities between federal and state
defendants. On any of these understandings of the district court’s
statement, it erred under section 3553(a)(6).1
   1
     Clark contends that we ought to review the district court’s sentence
for plain error because the government failed to object at the second sen-
tencing hearing to the district court’s consideration of state sentencing
practices. We conclude, however, that the government’s objection in its
supplemental brief that "the government still believes that the defendant
should be sentenced according to the U.S. Sentencing Guidelines in order
to avoid sentencing disparities with others who committed the same
crime and have similar backgrounds," J.A. 80, was sufficient to preserve
its claim for appellate review.
                        UNITED STATES v. CLARK                          5
   We think that the better understanding of the district court’s state-
ment is that it did not consider the need to avoid sentencing disparities
at all. Believing itself free to do so because the Sentencing Guidelines
are no longer mandatory, the district court simply resorted to state law
for additional insight as to what would constitute a reasonable sen-
tence under the circumstances, wholly without regard for whether the
sentence thereby imposed would result in sentencing disparities.

    First, the district court appeared resigned to its own belief that the
Guidelines had not, and could not, eliminate sentencing disparities.
Second, the court did not utter a single word about how the sentence
it imposed would or might avoid sentencing disparities among federal
defendants (or, for that matter, even between federal and state defen-
dants). And finally, the result of according "great weight" to the sen-
tences that defendants would receive in the state courts in which their
respective crimes were committed (if other district courts were to fol-
low suit and their reasoning to be accepted by this court) would be
a sentencing regime that actually produced, rather than avoided, sen-
tencing disparities among federal defendants, because federal defen-
dants who engaged in the same criminal conduct would receive
different sentences merely because they committed their federal
crimes in different states.

   Even were we to understand the district court as having considered
the need to avoid unwarranted sentencing disparities, however, we
would still be obliged to set aside its judgment of sentence for its fail-
ure to comply with the requirements of section 3553(a)(6). For if the
district court were understood as having considered avoidance of sen-
tencing disparities, it would be most plausible to understand the court
as having incorrectly believed that the disparities sought to be avoided
by section 3553(a)(6) are those between state and federal defendants.
See, e.g., J.A. 98 (noting the "disparate impact that a sentence has
[depending on] whether a person goes into the federal system or the
state system"); id. (stating that the disparate impact in the area of drug
offenses "is particularly problematic because there’s absolutely con-
current jurisdiction over the exact same activity"). These disparities
are not those that section 3553(a)(6) seeks to avoid. The sole concern
of section 3553(a)(6) is with sentencing disparities among federal
defendants. Cf. 28 U.S.C. § 991(b)(1)(B) (reciting that one of the stat-
utory purposes of the United States Sentencing Commission is "to
6                        UNITED STATES v. CLARK
establish sentencing policies and practices for the Federal criminal
justice system that . . . avoid[ ] unwarranted sentencing disparities
among defendants with similar records who have been found guilty
of similar criminal conduct . . . ."). Indeed, concurrent jurisdiction in
federal and state fora contemplates and accepts that there may well be
different sentences imposed for similar or identical offenses by the
two different justice systems. The Federal Sentencing Guidelines did
not seek to eliminate these sentencing disparities that inhere in a
scheme of concurrent jurisdiction. The Guidelines sought to avoid
only the unwarranted disparities that existed in the federal criminal
justice system, that system for which the Guidelines are governing
law.

    Nor could the sentence imposed by the district court stand if the
district court considered the need to avoid sentencing disparities
among federal defendants but concluded that this need should yield
to an interest in avoiding sentencing disparities between federal and
state defendants. Creating sentencing disparities among federal defen-
dants for no other reason than to eliminate the accepted disparities
that inhere in the parallel federal and state systems of justice is unrea-
sonable. See Booker, 125 S. Ct. at 766 ("[The section 3553(a)] factors
. . . will guide appellate courts, as they have in the past, in determin-
ing whether a sentence is unreasonable.").

   Though in the vast majority of cases the creation of disparities
among federal defendants that results from the consideration of state
sentencing practices will similarly render the sentence unreasonable
in light of section 3553(a)(6), the consideration of state sentencing
practices is not necessarily impermissible per se. There may be
unusual cases when, despite the disparities among federal defendants
created by the consideration of state sentencing practices, the sentence
imposed will yet be reasonable in light of all of the section 3553(a)
factors, because state sentencing practices will inform the proper con-
sideration of factors other than section 3553(a)(6).2 Because this is not
    2
    But even if consideration of state sentencing practices were ever justi-
fied, consideration of them in the way they were considered by the dis-
trict court would be unreasonable. The district court relied on the federal
probation officer’s unsworn statement that an unidentified local proba-
                        UNITED STATES v. CLARK                         7
one of those unusual cases, however, we conclude that the district
court’s consideration of state sentencing practices renders Clark’s
sentence unreasonable in light of section 3553(a).

   For the reasons recited, the judgment of sentence is vacated and the
case is remanded for resentencing pursuant to the United States Sen-
tencing Guidelines, as modified by the Supreme Court in Booker.

                                        VACATED AND REMANDED

DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judg-
ment:

   I agree that the sentence in this case must be vacated and the case
remanded for resentencing. I write separately to emphasize that, given
the substantial, albeit not unchecked, discretion federal district courts
enjoy after United States v. Booker, 125 S. Ct. 738 (2005), they can
take into account state sentencing practice in certain cases.

   Federal law instructs district 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.A.
§ 3553(a)(6) (West 2000). It seems to me that the fairest reading of
this mandate, albeit not the only plausible reading, see, e.g., United
States v. Lucania, 379 F. Supp. 2d 288, 296-97 (E.D.N.Y. 2005), is
that it generally bars federal courts from basing a sentence on consid-
eration of state sentences. Congress established a Sentencing Com-
mission and authorized detailed sentencing guidelines at least in part
to eliminate unwarranted disparities in sentences among federal
defendants. Permitting federal courts to consider an individual state’s
sentence for an analogous state crime would often cause disparities

tion officer, cognizant of only the "general facts," believed that the
defendant would actually receive a minimum of six months, see id. at 97,
when the state guidelines range was 36 to 49 months, see id. at 60, 77.
It would be unreasonable to depart from the state guidelines on the basis
of unsworn hearsay testimony, especially when that testimony was of
marginal relevance because it was based on only the "general facts" of
the case, rather than the precise facts.
8                       UNITED STATES v. CLARK
among federal defendants convicted of the same crimes. Accordingly,
in the usual case federal courts should not consider state practice in
imposing sentences.

   There are, however, some cases in which consideration of state
sentences will not conflict with § 3553(a)(6)’s mandate to "avoid
unwarranted sentence disparities" and may in fact help courts to apply
correctly the other factors set forth in § 3553(a). One example is when
a federal criminal statute incorporates state law. See, e.g., 18 U.S.C.A.
§ 13(a) (West 2000) (assimilating state criminal law for land within
federal jurisdiction); 18 U.S.C.A. § 1960(b)(1)(A) (West 2000)
(defining the federal crime of operating "an unlicensed money trans-
mitting business" as, inter alia, operating "without an appropriate
money transmitting license in a State where such operation is punish-
able as a misdemeanor or a felony under State law").

   When the effect and reach of a federal statute depend on state law,
consideration of the sentence mandated by state law seems entirely
appropriate. We must not lose sight of the fact that avoidance of "un-
warranted sentence disparities" is not the only command of § 3553(a).
In that statute Congress also directs courts to assign sentences that
"reflect the seriousness of the offense," "promote respect for the law,"
"provide just punishment," and "afford adequate deterrence to crimi-
nal conduct." 18 U.S.C.A. § 3553(a). Federal courts may well have
difficulty evaluating the "seriousness" of a crime defined by state law
without looking to see how the state punishes that behavior.

   Section 3553(a)(6) does not, and should not, prohibit a district
court from exercising its discretion to consider state sentences in
cases in which Congress itself has decided that state law determines
whether the activity at issue is punishable as a federal offense. Con-
cerns about disparities among federal defendants are necessarily less-
ened in such cases because federal law intentionally incorporates
variations in state law. It would be unreasonable to hold in such cases
that a federal court may not consider state sentencing practice.

   In sum, § 3553(a)’s broad language indicates that district courts
enjoy significant discretion in sentencing, provided, of course, that
they devise reasonable sentences. Application of the § 3553(a) factors
is neither a mechanical nor an automatic process — some factors may
                        UNITED STATES v. CLARK                         9
weigh more heavily than others depending on the facts of an individ-
ual case. Although the sentence in this case did not comply with
§ 3553(a), we should not interpret § 3553(a)(6) so narrowly as to cur-
tail a district court’s discretion to strike a fair balance among the
§ 3553(a) factors. This discretion includes the ability, in a proper
case, to consider state sentencing practice in this balance.

KING, Circuit Judge, concurring in the judgment:

   Although I agree with the result reached by Judge Luttig, as well
as his view that it was inappropriate for the district court, in sentenc-
ing Clark, to rely on the sentence she could have received in state
court had she been prosecuted there, my analysis of this case is more
aligned with that of Judge Motz. I write separately to emphasize my
view that, apart from the sentencing court’s improper and erroneous
reliance on the sentence Clark could have received in state court, the
considerations that informed its sentencing decision were entirely
appropriate under 18 U.S.C. § 3553(a).

   First, the court calculated and considered the applicable Guidelines
range, as required under § 3553(a)(4). Second, the court appropriately
weighed Clark’s history and characteristics, emphasizing that Clark
had no prior criminal history, that she had otherwise shown no pro-
pensity toward criminal activity, and that she probably would not
have been involved in criminal activity but for her boyfriend. See
§ 3553(a)(1) (requiring court to consider history and characteristics of
defendant). Third, and relatedly, the court observed that Clark had not
engaged in criminal activity since her arrest in this case and had
secured and maintained employment since that time, suggesting that
there was little need to deter future criminal activity. See
§ 3553(a)(2)(C) (directing courts to consider the need for punishment
"to protect the public from further crimes of the defendant"). Finally,
the court considered "the need . . . to provide the defendant with
needed educational . . . training" by requiring Clark to obtain a GED
as a condition of her probation. § 3553(a)(2)(D).

   Because of the sentencing court’s erroneous reliance on the sen-
tence Clark could have received had she been prosecuted in state
court, we need not decide whether these other considerations would
have rendered the sentence she received a reasonable one. It is note-
10                    UNITED STATES v. CLARK
worthy, however, that other circuits have had occasion to sustain as
reasonable sentences outside the Guidelines range that are based on
similar considerations bearing on the § 3553(a) factors. See, e.g.,
United States v. Johnson, 427 F.3d 423, 427-29 (7th Cir. 2005)
(upholding as reasonable sentence of 236 months, where Guidelines
prescribed sentencing range of 70 to 87 months, because of serious-
ness of crime and risk of recidivism); United States v. Shannon, 414
F.3d 921, 924 (8th Cir. 2005) (upholding as reasonable 58-month sen-
tence, where Guidelines called for sentence of 6 to 12 months,
because court properly considered defendant’s extensive criminal
record and incorrigibility); United States v. Pizano, 403 F.3d 991,
995-96 (8th Cir. 2005) (upholding as reasonable sentence of 18
months, where Guidelines called for minimum sentence of 120
months, because defendant assisted in other prosecutions, had no
extensive criminal history, and expressed regret).

   All that being said, I agree with what Judge Motz has written and
I also concur in the judgment.
