                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-10-2007

USA v. Ausburn
Precedential or Non-Precedential: Precedential

Docket No. 06-2250




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"USA v. Ausburn" (2007). 2007 Decisions. Paper 345.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/345


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                             PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                      __________

                         No. 06-2250
                         __________

              UNITED STATES OF AMERICA

                               v.

                     DAVID AUSBURN,

                                  Appellant
                         __________

       On Appeal from the United States District Court
          for the Western District of Pennsylvania
               (D.C. Criminal No. 05-cr-224)
        District Judge: Honorable Arthur J. Schwab

                     Argued June 8, 2007
                          ______

    Before: SMITH and GREENBERG, Circuit Judges,
              and POLLAK,* District Judge.


       *
         Honorable Louis H. Pollak, District Judge for the United
States District Court of the Eastern District of Pennsylvania,
sitting by designation.
                            ______

                 (Filed September 10, 2007)
                           ______

Lisa B. Freeland, Esquire
Federal Public Defender
Karen Sirianni Gerlach, Esquire (argued)
Assistant Federal Public Defender
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, Pennsylvania 15222
Counsel for Appellant

Mary Beth Buchanan, Esquire
United States Attorney
Laura Schleich Irwin, Esquire (argued)
Assistant United States Attorney
Robert L. Eberhardt, Esquire
Office of United States Attorney
700 Grant Street
Suite 400
Pittsburgh, Pennsylvania 15219
Counsel for Appellee

                            ______

                 OPINION OF THE COURT
                         ______

POLLAK, District Judge:

       David Ausburn appeals from the sentence imposed after
he pled guilty to using a telephone and a computer to persuade
a minor to engage in illegal sexual activity in violation of 18
U.S.C. § 2422(b). The most salient feature of that sentence is a

                              -2-
144-month term of imprisonment—more than double the top
end of the advisory range under the Sentencing Guidelines
(“guidelines” or “U.S.S.G.”). Ausburn argues that: (1) the
District Court’s failure to provide advance notice of its intent to
sentence him above the advisory guidelines range violated the
Due Process Clause; and (2) the District Court’s sentence was
unreasonable.1

        The District Court did not provide a statement of reasons
sufficient to allow us to review whether Ausburn’s sentence was
reasonable under the circumstances; therefore, we must vacate
the sentence and remand for a new sentencing proceeding. This
result is plainly required by our previous decisions, see, e.g.,
United States v. Kononchuk, 485 F.3d 199, 204–205 (3d Cir.
2007); United States v. Jackson, 467 F.3d 834, 841 (3d Cir.
2006); United States v. Cooper, 437 F.3d 324 (3d Cir. 2006),
and hence does not itself call for treatment in a precedential
opinion. However, we have chosen to write precedentially in
order to address Ausburn’s due process argument. As discussed

       1
         Ausburn also contends that a condition of his supervised
release requiring him to submit DNA samples at the direction of
his probation officer violates his Fourth Amendment right to be
free of unreasonable searches. This contention was not
advanced in the District Court. Ordinarily we would review
such an unpreserved contention for plain error. See United
States v. Loy, 191 F.3d 360, 369 n.6 (3d Cir. 1999). However,
as Ausburn acknowledges, his Fourth Amendment argument is
squarely foreclosed by our decision in United States v.
Sczubelek, 402 F.3d 175, 177 (3d Cir. 2005). Therefore,
because we lack authority to grant relief on this issue, we will
not address it. See Interfaith Cmty. Org. v. Honeywell Int’l, Inc.,
426 F.3d 694, 704–705 (3d Cir. 2005) (“[A] three-judge panel
may not overrule a decision by an earlier panel.”) (citing Third
Circuit Internal Operating Procedure 9.1).

                               -3-
below, we find this argument unavailing for substantially the
reasons stated in United States v. Vampire Nation, 451 F.3d 189,
195–98 (3d Cir. 2006) (holding that advance notice of potential
sentencing variances is not required under Federal Rule of
Criminal Procedure 32(h)), cert. denied, 127 S. Ct. 424 (2006).

                               I.

                              A.

        Ausburn met the minor victim in this case sometime prior
to January 2003, when he responded to a call at her home while
on the job as a police detective with the West Homestead Police
Department (“WHPD”) in Allegheny County, Pennsylvania.2
Ausburn contends that he began his relationship with the girl
and her family for the purpose of acting as a role model and
positive influence in the girl’s life. However, in or around
January 2003, Ausburn began a sexual relationship with the girl,
who was then fourteen years old. The relationship lasted from
January 2003 until early 2005 (although Ausburn was ultimately
charged based only on his conduct from January to February of
2003).

       In January 2005, a confidential source provided United
States postal inspectors with printed copies of several e-mails
exchanged between Ausburn and the minor victim in January




       2
        The record shows that the minor victim in this case has
already been affected adversely by public scrutiny surrounding
the proceedings. We therefore limit our discussion of the facts
underlying Ausburn’s offense to the minimum necessary to
explain our decision.

                              -4-
and February of 2003.3 The e-mails referred obliquely to the
sexual nature of their relationship. After a preliminary
investigation, including an interview with the minor victim, the
inspectors confronted Ausburn with the e-mails on February 3,
2005. On February 4, 2005, Ausburn confessed to a sexual
relationship with the minor victim and to the use of e-mail and
the telephone in furtherance of that relationship.

                               B.

       On August 3, 2005, the government filed a criminal
information in the United States District Court for the Western
District of Pennsylvania charging that “[f]rom in and around
January, 2003, until in and around February, 2003,” Ausburn,
“using a facility and means of interstate and foreign commerce,
specifically a telephone and a computer, did knowingly
persuade, induce, entice and coerce an individual [under
eighteen] to engage in [illegal] sexual activity,” in violation of
18 U.S.C. § 2422(b). After agreeing to plead guilty to this
charge, Ausburn moved in the District Court for the production
of a Presentence Investigation Report (“PSR”) prior to his
change-of-plea hearing, “in contemplation of scheduling a
change of plea and sentence together in one proceeding.” The
court agreed and ordered the Probation Office to prepare a PSR.

       The PSR: (1) made factual findings as to, inter alia,
“offense conduct,” “offender characteristics,” and “victim
impact”; and (2) calculated a total offense level of twenty-five
and an advisory sentencing range of fifty-seven to seventy-one
months under the 2002 guidelines. Although there is a

       3
         Ausburn had apparently left the e-mails behind in the
drawer of an old workstation after he was promoted to chief of
police of the WHPD in January 2004.

                               -5-
presumption that the guidelines in effect at the time of
sentencing will be applied, see U.S.S.G. § 1B1.11(a) (2004), the
PSR found that application of the 2004 guidelines—which were
in effect when the PSR was prepared in October 2005—would
have resulted in a harsher sentencing range (seventy to eighty-
seven months) than that called for under the 2002 guidelines.
Therefore, pursuant to U.S.S.G. § 1B1.11(b)(1) (2004), the less
punitive provisions found in the 2002 guidelines manual were
applied to avoid an ex post facto violation.

        Ausburn filed written objections to the PSR’s application
of the 2002 guidelines, arguing instead that the District Court
should apply what was essentially a hybrid of the 2002 and 2004
guidelines.4 In the alternative, Ausburn stated that “the next
fairest approach” would be to follow “the view of both counsel
during plea negotiations” and apply the 2002 guidelines, but
without a two-offense-level enhancement recommended by the
PSR for “the victim [being] in the custody, care, or supervisory
control of the defendant.”5 This would have resulted in a total


       4
         Ausburn argued that, in applying the 2004 guidelines,
the court should continue to give effect to a cross-reference
found in the 2002 guidelines. He stated that the “current [2004]
version of U.S.S.G. § 2A3.2 should be applied to him despite its
current non-appearance via a cross-reference in § 2G1.3.”
Similarly, on appeal, Ausburn argues that “there was no good
reason to deny Mr. Ausburn the benefit of the current [2004]
version of § 2A3.2, despite the absence of the cross-reference,
since the guideline was appropriate for the conduct.”
       5
          The “custody, care, or supervisory control”
enhancement “is to be applied whenever the victim is entrusted
to the defendant, whether temporarily or permanently.”
U.S.S.G. § 2A3.2 cmt. n.2 (2002). Ausburn did not object to the
PSR’s finding that the victim’s parents had on several occasions

                              -6-
offense level of twenty-three and a sentencing range of forty-six
to fifty-seven months.

        Ausburn offered two additional arguments that seemed
to relate to the court’s sentencing discretion under 18 U.S.C. §
3553(a), rather than the guidelines calculation per se. First, he
argued that under the post-Booker, advisory-guidelines scheme,
“a sentence consistent with” his suggested guidelines analysis
was “appropriate in the discretion of the Court.” Second, he
argued that “two recent cases in this district suggest an
appropriate sentencing range for Mr. Ausburn.” In the first case,
United States v. Bricker, Crim. No. 04-326 (W.D. Pa., judgment
entered Sept. 1, 2005), a defendant who used “motion-activated
cameras” to record “child pornography” had been sentenced to
thirty months’ imprisonment. In the second case, United States
v. Kenrick, Crim. No. 04-291 (W.D. Pa., judgment entered Nov.
10, 2005)—which had been decided by the district judge sitting
in Ausburn’s case—the defendant received a sentence of forty-
six months imprisonment for a sexual offense involving a
minor.6 In light of these cases, Ausburn argued that the
“appearance of fairness,” the “goal of uniformity in sentencing,”
and the statutory need to avoid unwarranted sentencing
disparities all “militate[d] in favor of applying one of the more
lenient Guidelines analyses in this case.”

      Finally, Ausburn objected to two factual contentions in
the PSR: (1) he sought inclusion of additional e-mails from the
minor victim which he stated “serve[d] to encourage the


allowed Ausburn to drive the victim to church and school
functions.
       6
      See also United States v. Kenrick, No. 05-5077, 2007
WL 2384232, at *3 (3d Cir. Aug. 21, 2007).

                              -7-
relationship”; and (2) he objected to the PSR’s finding as to the
duration and extent of his sexual relationship with the minor
victim.

       The government filed a brief response in which it
endorsed the PSR’s guidelines calculation, stating that “[t]he
government believes that a sentence within the Guideline
range . . . is reasonable.” The government “request[ed] that the
Court sentence Defendant within the Guideline range.”

       The District Court entered “Tentative Findings and
Rulings” on March 28, 2006, overruling Ausburn’s objections
and adopting the PSR’s recommended advisory sentencing
range of fifty-seven to seventy-one months. As to Ausburn’s
argument that a combination of 2002 and 2004 guidelines
provisions should be applied,7 the court noted that “[i]t is not our
prerogative to override the decisions of the United States
Sentencing Commission about which guidelines apply to certain
statutory provisions.”8 As to Ausburn’s second argument

       7
           It would appear that, at the time the District Court
made this ruling, in March 2006, the choice should have been
between the 2005 guidelines and the 2002 guidelines, not the
2004 guidelines and the 2002 guidelines. See U.S.S.G. (2005)
(incorporating guideline amendments effective November 1,
2005, and earlier). However, the parties and the District Court
have proceeded under the assumption that “the 2004 manual was
in effect on the date of Mr. Ausburn’s sentencing,” Appellant’s
Br. 31, and we see no reason to disturb this assumption, as our
review shows that the 2005 guidelines and the 2004 guidelines
applicable to Ausburn’s offense are identical in all material
respects.
       8
         Ausburn raises this issue again on appeal. See supra
note 4. Because we find no merit in Ausburn’s complex
guidelines argument, we decline to address the issue in detail.
Rather, the following, brief discussion will, we think, suffice to
explain our rejection of Ausburn’s position.
       The choice before the District Court, in calculating
Ausburn’s guidelines sentencing range, was whether to apply

                                -8-
concerning his reliance on the range of forty-six to fifty-seven
months contemplated during plea negotiations, the court stated
that it was not obligated “to protect [the parties] from mistaken
beliefs about which guidelines manuals either party believed
would apply during preliminary plea discussions that were never
consummated.” As to the balance of Ausburn’s legal objections,
the court noted its awareness that “the Sentencing Guidelines are
only advisory” and stated that “although this Court will use the
guidelines calculations approach [from the PSR] in determining
an advisory guideline range, this Court will also consider
defendant’s arguments in fashioning an appropriate sentence.”

       As to Ausburn’s factual objections, the court first noted
its responsibility under Federal Rule of Criminal Procedure
23(i)(3)(B) to resolve such objections unless “no such finding is
necessary because the matter in controversy will not be taken
into account in sentencing.” The court then stated that “because
[Ausburn’s suggested] corrections [to the PSR] have no impact


the 2004 guidelines—in full—or the 2002 guidelines—in full.
Ausburn’s contention that the two sets of guidelines should be
merged, in order to arrive at a proper calculation of his sentence,
was not a viable option. See U.S.S.G. § 1B1.11(b)(2) (2004)
(“The Guidelines manual in effect on a particular date shall be
applied in its entirety. The court shall not apply . . . one
guideline section from one edition of the Guidelines Manual and
another guideline section from a different edition . . . .”).
         Ausburn does not challenge the PSR’s conclusion that
application of the 2004 guidelines, as written, would have
resulted in an offense level of twenty-seven and a sentencing
range of seventy to eighty-seven months—a result harsher than
the fifty-seven to seventy-one months called for under the 2002
guidelines. Accordingly, the District Court did not err in
calculating Ausburn’s guidelines sentencing range as fifty-seven
to seventy-one months under the 2002 guidelines. See U.S.S.G.
§ 1B1.11(b)(1) (providing that court shall use guidelines in
effect at time crime was committed, if using later version of
guidelines would create ex post facto violation); United States
v. Wood, 486 F.3d 781, 790 (3d Cir. 2007) (same), petition for
cert. filed, No. 06-11641 (U.S. May 25, 2007).

                               -9-
upon the guidelines calculation, the court need not resolve any
alleged conflicts.” Further, the court also noted that it
“accept[ed] the accuracy of the fact findings of the [PSR] which
are not in dispute.” Finally, the court stated that, in light of the
tentative findings and rulings, “[s]hould defendant wish not to
go forward with his open plea, it is certainly within his rights to
do so at this time.”

                                C.

        Ausburn’s combined change-of-plea and sentencing
hearing was held on March 31, 2006. In the first part of the
proceeding, the court accepted Ausburn’s waiver of indictment
and plea of guilty to one count of violating 18 U.S.C. § 2422(b).
In the course of determining that Ausburn’s guilty plea was
knowing and voluntary, see Fed. R. Crim. P. 11(b), the court,
inter alia, confirmed Ausburn’s understanding of the following
facts: (1) the maximum term of imprisonment authorized by
statute was fifteen years; (2) the guidelines range of fifty-seven
to seventy-one months was advisory and was not binding on the
court; and (3) the court had the “discretion to sentence . . . up to
the maximum sentence permitted by the statute.”9

                                1.

      The combined hearing then segued directly into
sentencing. The court first denied Ausburn’s previously filed
motion for production of victim-impact statements by the

       9
         The colloquy on this particular point went as follows:
              THE COURT: Now, I would appreciate it
       if you would pay attention to the next question in
       particular.
              Do you understand that I’m not bound by
       any recommendation of sentence you and/or the
       government may have suggested to you, and the
       Court had discretion to sentence you up to the
       maximum sentence permitted by the statute?
              THE DEFENDANT: Yes, sir.

                               -10-
victim’s guardian and her father and for a continuation of the
hearing to review the statements. (This ruling is not appealed.)
The victim statements were then presented, orally, to the court.
The victim’s father’s statement emphasized the sense of betrayal
on the part of the family, noting that the victim and her family
had trusted that Ausburn, as a public safety officer, had only
proper motives for his interest in the victim. The victim’s father
also addressed the seriousness of Ausburn’s crime, described the
emotional problems left in the wake of Ausburn’s conduct, and
expressed a hope that Ausburn would not be allowed to
victimize “another unsuspecting family.” The minor victim’s
guardian followed, emphasizing similar themes—i.e., the
negative effect of Ausburn’s actions on the minor victim and her
family, and the likelihood of future emotional difficulties for the
victim.

        Immediately after this statement, the defendant and
defense counsel were offered the chance to speak. Defense
counsel began by stating: “Your Honor, that shows the reason
I made my motion [for prior production of the victim-impact
statements]. It’s just I’m unable to respond to any of that.”
Counsel then asked the judge not to allow the victim-impact
statements to determine the sentence, but to consider all of the
section 3553(a) factors “and give Mr. Ausburn a chance to make
something constructive of his life . . . when he does get out of
prison.” Counsel repeated his argument that Ausburn’s case
was “very much like” the Kenrick case decided by the same
judge, in that it was “situational” and not driven by predatory or
pedophilic behavior. He also pointed to Ausburn’s “exemplary
life and work prior to January of 2003 [as] a powerful factor that
the Court should consider in determining what the sentence
should be.”

        Noting also that this was Ausburn’s first offense and that
Ausburn promptly (upon being caught) accepted responsibility,
defense counsel asked for a sentence of forty-eight months’
imprisonment, arguing that this would serve “the need . . . to
reflect the seriousness of the offense, . . . [to] provide for just

                               -11-
punishment . . ., and to afford adequate deterrence.” Finally,
counsel again reiterated that the judge should avoid an
“unwarranted . . . disparit[y]” with the two cases discussed
above, in which the sentences were thirty and forty-six months.
The defendant then presented an extended statement
emphasizing his shame and remorse.

        Government counsel, in response, stated that defense
counsel was arguing “that the victim impact statement[s] should
not have any bearing on the Court’s sentence,” and argued to the
contrary that the statements “should have a great bearing on the
Court’s sentence because [they] go[] to the heart of what the
punishment should be in this case, for a man who abused his
authority and took advantage of a vulnerable girl, using that
authority.” Although the government had advocated a within-
guidelines sentence in its previous filings, government counsel
did not discuss the appropriate length of sentence at the
sentencing hearing. Defense counsel then clarified that “I did
not try to say that the impact statement[s] should have no effect
on the sentence. I said, they should not be the entire sum and
substance of the Court’s thinking in the matter.” Defense
counsel also argued that the content of the victim impact
statements “is clearly contemplated, unfortunately, by the very
nature of this . . . offense, and it is what drives already the
Sentencing Guidelines range.”

                               2.

       After confirming that neither side had anything further to
present, the District Court sentenced Ausburn to 144 months’
imprisonment, noting that this was “double the upper end of the
sentencing guideline range.” The court stated its reasons for the
144-month term as follows:

               The Court considers the sentence imposed
       to be sufficient, but no greater than necessary, for
       the sentence to reflect the seriousness of the
       offense, promote respect for the law, and provide

                              -12-
for just punishment. The offense, as was said
earlier, it’s a serious offense and your position as
a law enforcement officer makes your violation of
the law that much more unacceptable.

       The sentence is also sufficient, but no
greater than necessary, to afford adequate
deterrence, protect the public against commission
of further crimes by this defendant, and provide
the defendant with needed and effective
educational or vocational training, medical care,
or other correctional treatment.

        Additionally, the Court has considered all
the other factors set forth in [18 U.S.C.
§ 3553(a)], including the nature and
circumstances of the offense, which this Court
finds to be particularly troubling, as I have
mentioned, the defendant’s history and
characteristics, and the kind of sentences available
for this offense.

       The Sentencing Guidelines, under the
advisory Guidelines . . . as I said previously, I’ve
doubled the maximum under the Guidelines
because I believe it’s appropriate to the facts of
this case.

        I’ve also considered any applicable policy
statements adopted by the Sentencing
Commission, the need to avoid unwarranted
sentencing disparities among the defendants with
similar records who found themselves guilty of
similar conduct, and the need to provide
restitution to any of the victims of the offense.

      As I said before, your conduct was totally
unacceptable and you deserve double the number

                       -13-
       that I set forth in the Sentencing Guidelines.

        Defense counsel immediately objected “to the lack of
notice of the Court’s intention to deviate from the advisory
range,” arguing that “the amount of deviation is unreasonable,
in light of the facts of this case.” Defense counsel stated: “I can
only be afraid that it has something to do with something I’m
unaware of, because this case, as I see it, is very, very, so close
to the Kenrick case, where the Court did impose [forty-six]
months, that I can’t see this as being a reasonable exercise of
discretion under [section] 3553(a).”

      Apparently in response to this objection, the court then
made the following statement:

                Well, let me just add. As to the position of
       trust, I’ve already considered that in dealing with
       the factors for the—from the [PSR] and for the
       point count thereunder.

              I don’t know what else to say. If you think
       other than this is a serious crime, and four years
       of imprisonment I find to be insufficient. Six
       years I find to be insufficient. And you can
       handle, handle that matter on appeal.

        Before closing the proceeding and placing Ausburn in
custody, the court added “I also, respectfully, remind counsel
that I made a point in the questioning relating to the guilty plea
to make sure that everyone understood the potential within the
Court’s discretion to even go to the maximum, of which my
sentence is less than the maximum.”

       Ausburn filed a timely notice of appeal.10


       10
          The District Court had jurisdiction pursuant to 18
U.S.C. § 3231; we have jurisdiction over Ausburn’s appeal of
his sentence under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                               -14-
                                II.

       We exercise plenary review over Ausburn’s claim that
his sentencing proceeding failed to comport with the Due
Process Clause. See United States v. Dees, 467 F.3d 847, 854
(3d Cir. 2006), petition for cert. filed, No. 06-10826 (U.S. Apr.
18, 2007).         Ausburn’s sentence is reviewed for
“reasonableness.” See United States v. Grier, 475 F.3d 556,
568, 571 (3d Cir. 2007) (en banc), petition for cert. filed, No.
06-11486 (U.S. May 22, 2007).               “The touchstone of
‘reasonableness’ is whether the record as a whole reflects
rational and meaningful consideration of the [sentencing] factors
enumerated in 18 U.S.C. § 3553(a).” Id. at 571.11 The specific
contours of reasonableness review are discussed further below.
See infra Part III.B.

                               III.

        Ausburn argues that (a) he was denied due process
because the District Court failed to provide advance notice of its
intent to sentence him above the advisory guidelines range; and
(b) the sentence imposed by the District Court was
unreasonable. In Part III.A, infra, we find that the District
Court’s failure to provide advance notice before imposing a
sentence above the advisory sentencing guidelines range, based
on its consideration of the sentencing factors prescribed by 18
U.S.C. § 3553(a), did not violate the Due Process Clause.
However, in Part III.B, infra, we find that the District Court’s
imposition of a 144-month term of imprisonment was
unreasonable, because the District Court did not provide



       11
         Cf. Rita v. United States, --- U.S. ----, 127 S. Ct. 2456,
2465 (2007) (referring to “our explanation in Booker that
appellate ‘reasonableness’ review merely asks whether the trial
court abused its discretion”); id. at 2470–71 & n.2 (Stevens, J.,
concurring) (describing reasonableness review as “an
abuse-of-discretion standard”).

                               -15-
sufficient reasons on the record to justify its sentence.
Accordingly, we will vacate Ausburn’s sentence and remand for
a new sentencing proceeding.

                                A.

        In general, procedural due process requires “at a
minimum . . . that deprivation of life, liberty or property by
adjudication be preceded by notice and opportunity for hearing
appropriate to the nature of the case.” Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 313 (1950).12 In the criminal
context, “the sentencing process, as well as the trial itself, must
satisfy the requirements of the Due Process Clause.” Gardner
v. Florida, 430 U.S. 349, 358 (1977) (plurality opinion) (capital
case); accord United States v. Mannino, 212 F.3d 835, 845–46
(3d Cir. 2000) (“Obviously, a criminal defendant must be
afforded due process at sentencing.”) (non-capital case).

        In particular, due process in criminal sentencing requires
that a defendant receive notice of, and a reasonable opportunity
to comment on, (a) the alleged factual predicate for his sentence,
and (b) the potential punishments which may be imposed at
sentence. See United States v. Nappi, 243 F.3d 758, 763–64 (3d
Cir. 2001); Townsend v. Burke, 334 U.S. 736, 741 (1948)
(stating that it is “a requirement of fair play” that a criminal
“sentence [is] not predicated on misinformation”); Marks v.
United States, 430 U.S. 188, 191–92 (1977) (“[A] right to fair
warning of that conduct which will give rise to criminal
penalties is fundamental to our concept of constitutional
liberty”). In federal practice, a defendant’s “due process right
to be sentenced based upon accurate information” is
“safeguard[ed]” by Federal Rule of Criminal Procedure 32,
which “contains specific requirements that ensure that the
defendant is made aware of the evidence to be considered and


       12
           See U.S. CONST. amend. V (“No person shall be . . .
deprived of life, liberty, or property, without due process of law
. . . .”).

                               -16-
potentially used against him at sentencing, and is provided an
opportunity to comment on its accuracy.” Nappi, 243 F.3d at
763. Chief among the protections provided by Rule 32 is the
requirement that the Probation Office conduct a presentence
investigation and produce a thorough presentence investigation
report (“PSR”13). See Nappi, 243 F.3d at 763–64 & n.4 (citing
numerous provisions of Fed. R. Crim. P. 3214); Fed. R. Crim. P.
32(c)–(d).15 All parties receive notice of the PSR and are
entitled to (a) object to the facts stated or the facts omitted, (b)
present evidence on these objections, and (c) make arguments at
sentencing. See Fed. R. Civ. P. 32(e)–(i). In addition, notice of
potential punishments is afforded by Congress’s recitals as to
sentence in the provisions of the United States Code cited in the
charging document. See United States v. Pennavaria, 445 F.3d
720, 723–24 (3d Cir. 2006) (United States Code provided “fair
warning” that criminal defendant could be sentenced to prison
term up to statutory maximum), cert. denied, 127 S. Ct. 531
(2006).

        There is no merit in Ausburn’s argument that he lacked
effective notice of the factual predicate of his sentence, or of the
potential punishment for his crime. As to the factual predicate
for his sentence, Ausburn does not identify any fact relied on by

       13
          The presentence investigation report is also sometimes
referred to by the acronym “PSI.”
       14
         The provisions of the Rule 32 cited in Nappi have since
been renumbered and reorganized, but the current Rule is
substantively similar, for purposes of our discussion, to the
version analyzed by Nappi. Cf. infra note 15.
       15
          The District Court must, in most cases, order the
Probation Office to prepare a PSR. Fed. R. Crim. P. 32(c)(1).
The PSR must include, inter alia: an analysis of the proper
application of the Sentencing Guidelines to the case, id.
32(d)(1); factual information as to the defendant’s history and
characteristics, id. 32(d)(2)(A); an assessment of the impact of
the crime on any victims, id. 32(d)(2)(B); and “any other
information that the court requires,” id. 32(d)(2)(F).

                               -17-
the District Court which was not included in the thorough PSR
prepared by the Probation Office. And Ausburn received
adequate notice of the potential punishment when he waived
indictment and was charged in a criminal information with
violation of 18 U.S.C. § 2422(b) which, at the time, provided for
a “fine[] . . . and imprison[ment of] not less than 5 years and not
more than 30 years.” 18 U.S.C. § 2422(b) (2006).16

       Nonetheless, Ausburn claims that his due process rights
were violated when the District Court imposed a sentence of
incarceration in excess of the advisory guidelines range (which
was fifty-seven to seventy-one months) without first giving
notice of its intention to do so. Ausburn contends that “a
defendant should receive prior notice of any deviation from the
applicable guideline range, regardless of the reason for it.”
Specifically, he contends that he was subject to unfair surprise
because he “had no idea that the district court intended to double
his sentence based upon victim statements,” and that “had [he]
received prior notice, he could have taken action to mitigate the
victim statements, with evidence believed to exist.”17 Notably,

       16
         Section 2422(b) has since been amended to provide for
a mandatory minimum sentence of ten years and a maximum
sentence of life. See Adam Walsh Child Protection Safety Act
of 2006, Pub. L. No. 109-248, § 203, 120 Stat. 587, 613 (July
27, 2006).
       17
          Ausburn’s argument on this point is a bit unclear.
Some statements in Ausburn’s briefs on appeal can be
interpreted as an argument that Ausburn was sentenced based on
alleged facts which were presented for the first time during
victim impact statements at sentencing.           But Ausburn
acknowledges in another section of his argument that the victim
impact statements at his sentencing “presented only an
emotional appeal and no new facts,” and that the facts alleged in
those statements “were already accounted for in the [PSR’s]
guideline computation for the offense.” At any rate, even
without this concession, we are satisfied that all material facts
included in the victim impact statements presented at Ausburn’s
sentencing had already been canvassed in the “victim impact”

                               -18-
Ausburn does not specify the nature of the rebuttal evidence that
he would have offered if he “had received prior notice.” More
important, Ausburn did receive prior notice of the substance of
the expected statements. The PSR’s “victim impact” section
provided notice of the material facts alleged in the victim impact
statements, as well as the claimed emotional impact on the
victim and her family. And, after Booker, the factors which a
district court will take into account at sentence are clear:
“Booker contemplates that the district court will impose a
discretionary sentence after consideration of the advisory
Guidelines, the grounds raised by counsel, the defendant’s
allocution, victim statements, other evidence, and the factors set
forth in § 3553(a).” Vampire Nation, 451 F.3d at 197 (emphasis
and footnote omitted).18


section of the PSR. See text infra; cf. United States v. Curran,
926 F.2d 59, 62–63 (1st Cir. 1991) (adopting rule that
defendants must have opportunity to contradict “statements of
fact contained in [victim] letters” to the court, when such
statements “[a]re not included in the [PSR’s] ‘victim impact’
report”).
         Further, we perceive no violation of due process in the
“emotional appeal” presented by the victim impact statements.
While it may be true that the statements presented a compelling
account of the harms allegedly wrought by Ausburn’s conduct,
this is inherent in the victim’s right to attend court and present
his or her own account of the crime and its impact. See Vampire
Nation, 451 F.3d at 197 n.4 (unlike typical fact witnesses
offered at sentencing, crime victims possess a “right . . . in the
nature of an independent right of allocution at sentencing”); cf.
Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1013, 1016 (9th Cir.
2006) (“The Crime Victims’ Rights Act sought to . . . mak[e]
victims independent participants in the criminal justice
process.”). Nothing in the victim impact statements in this case
was so unfairly prejudicial or inflammatory as to present a due
process issue.
       18
         Subsection 3553(a) provides that, “in determining the
particular sentence to be imposed, [the district court] shall
consider” the following factors:

                              -19-
       It is true that in United States v. Burns, supra, decided


      (a) Factors To Be Considered in Imposing a
      Sentence. . . . The court, in determining the
      particular sentence to be imposed, shall
      consider—
             (1) the nature and circumstances of the
             offense and the history and characteristics
             of the defendant;
             (2) the need or 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
                     criminal conduct;
                     (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 committed by the
                     applicable category of defendant as
                     set forth in the guidelines . . .;
             (5) any pertinent policy statement . . .
             issued by the Sentencing Commission . . .
             that . . . is in effect on the date the
             defendant is sentenced[;]
             (6) the need to avoid unwarranted sentence
             disparities 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).

                              -20-
under the sentencing guidelines when still deemed mandatory,
the Supreme Court “held that an earlier version of Rule 32
required district courts to give defendants advance notice before
engaging in sua sponte upward departures from Guidelines
sentences.” Vampire Nation, 451 F.3d at 195–96 (citing Burns,
501 U.S. at 136).19 And it is also true that—although Burns
was, as a formal matter, a case of rule interpretation—the Court
was at pains to make clear its awareness that the Due Process
Clause was close at hand.20 Ausburn would extend the Burns

       19
          The Court in Burns explained that:
        In the ordinary case, the presentence report or the
        Government’s own recommendation will notify
        the defendant that an upward departure will be at
        issue and of the facts that allegedly support such
        a departure. Here we deal with the extraordinary
        case in which the district court, on its own
        initiative and contrary to the expectations of both
        the defendant and the Government, decides that
        the factual and legal predicates for a departure are
        satisfied.
Burns, 501 U.S. at 135 (footnote omitted). Under such
circumstances, the Court chose to construe the relevant Rule 32
language then in effect to ensure “both notice and a meaningful
opportunity to be heard.” Id. at 137–38 (emphases in original).
        In 2002, at a time when the sentencing guidelines were
still mandatory, Rule 32 was amended to reflect the teaching of
Burns. See Vampire Nation, 451 F.3d at 195–96. Pursuant to
that amendment, Rule 32(h) now requires that a sentencing court
give “reasonable notice” to the parties “[b]efore . . . depart[ing]
from the applicable sentencing range on a ground not identified
. . . in the presentence report or in a party’s prehearing
submission.” Fed. R. Crim. P. 32(h).
       20
         The Court said:
       [W]ere we to read Rule 32 to dispense with
       notice, we would then have to confront the serious
       question whether notice in this setting is
       mandated by the Due Process Clause. Because
       Rule 32 does not clearly state that a district court
       sua sponte may depart upward from an applicable

                               -21-
rationale to require not only advance notice of a traditional
“departure” under the sentencing guidelines, but advance notice
of any sentence outside the guidelines range, including one
based on the sentencing court’s consideration of the factors
enumerated in 18 U.S.C. § 3553(a) (i.e., a sentencing
“variance”21).

       In Vampire Nation, we declined to give such a
construction to Rule 32(h), concluding that (1) the rationale of
Burns lacked force after Booker; and (2) application of the
principles stated in Burns to sentencing variances under
§ 3553(a) would actually contravene the superseding principles
stated in Booker. See Vampire Nation, 451 F.3d at 196. We
explained that:

       [N]ow that Booker has rendered the Guidelines
       advisory, the concerns that animated the Court’s
       decision in Burns no longer apply. . . .

             Furthermore, the requirement of Rule 32(h)
       that the court specify “any ground” of
       contemplated departure from the Guidelines range



        Guidelines sentencing range without providing
        notice to the defendant we decline to impute such
        an intention to Congress.
Burns, 501 U.S. at 138. But cf. id. at 146, 155 (Souter, J.,
dissenting) (arguing that “what the Court d[id] to Rule 32 comes
closer to reconstruction than construction”).
       21
          An upward variance is a (post-Booker) decision to
sentence above the advisory guidelines range based on the
§ 3553(a) factors. See Jackson, 467 F.3d at 837 n.2. An upward
variance is distinguished from an upward departure, which is a
decision to increase the guidelines range “for reasons
contemplated by the Guidelines themselves (under U.S.S.G.
§ 4A1.3 and Ch. 5, Pt. K).” Id.; see also, e.g., U.S.S.G. § 4A1.3
(“Departures Based on Inadequacy of Criminal History
Category (Policy Statement)”).

                              -22-
       was designed for pre-Booker departures, which
       were constrained by the provisions of the
       Guidelines pertaining to departures.          The
       Guidelines have now become advisory and they
       no longer limit the grounds a court can consider at
       sentencing. Thus, the Guidelines are now only
       one factor among many which can influence a
       discretionary sentence.      Application of the
       advance notice requirement of Rule 32(h) to
       discretionary sentenc[ing] would elevate the
       advisory sentencing range to a position of
       importance that it no longer can enjoy.

Id. (internal quotation marks and citation omitted). We further
observed that the proposed requirement of advance notice for
sentencing variances was unnecessary after Booker: “Because
defendants are aware [prior to sentencing] that district courts
will consider the factors set forth in § 3553(a), we believe the
element of ‘unfair surprise’ that Burns sought to eliminate is not
present.” Id. (citing United States v. Walker, 447 F.3d 999,
1007 (7th Cir. 2006), cert. denied, 127 S. Ct. 314 (2006)).

       Although Vampire Nation, like Burns, was technically a
rule-interpretation case, we see no reason to vary either the
analysis or the result of Vampire Nation in light of Ausburn’s
analogous claim, brought directly under the Due Process Clause.
As noted above, due process requires reasonable notice and a
meaningful opportunity to be heard in regard to both the factual
predicate of a sentence and the potential punishments which
may be imposed at sentencing. But in the common run of cases,
the protections of Rule 32, combined with the general character
of post-Booker sentencing, will be sufficient to put the
defendant on notice of the factual predicate for his sentence, the
potential penalties for his conduct—i.e., the full range of
statutorily-authorized punishment—and the factors to be
considered in setting those penalties. See Vampire Nation, 451
F.3d at 196; see also United States v. Irizarry, 458 F.3d 1208,
1212 (11th Cir. 2006) (per curiam) (“After Booker, parties are

                              -23-
inherently on notice that the sentencing guidelines range is
advisory and that the district court must consider the factors
expressly set out in section 3553(a) when selecting a reasonable
sentence between the statutory minimum and maximum.”),
petition for cert. filed, No. 06-7517 (U.S. Oct. 26, 2006).

       As a practical matter, the advisory range continues to
hold significant sway in most cases even after Booker. See
Cooper, 437 F.3d at 331; Rita v. United States, --- U.S. ----, 127
S. Ct. 2456, 2463–65 (2007). Yet a reasonable and prudent
defendant must be prepared to argue for an appropriate sentence
based on all of the sentencing factors22; the defendant may no
longer assume that the range of potential punishment is
effectively bounded by the guidelines range (as modified by any
requested guidelines departures). See Vampire Nation, 451 F.3d
at 196; cf. Rita, 127 S. Ct. at 2465 (“[T]he sentencing court does
not enjoy the benefit of a legal presumption that the Guidelines
sentence should apply.”).23 For this reason, the Supreme Court’s
discussion in Burns is without application here. The point of
Burns was precisely that, under the mandatory guidelines,
defendants were entitled to assume that the range of potential
punishment was bounded by the guidelines range, as modified
by any requested departures not yet ruled on. See Burns, 501
U.S. at 134–35. After Booker, “the element of ‘unfair surprise’
[arising from a non-guidelines sentence] that Burns sought to
eliminate is not present.” Vampire Nation, 451 F.3d at 196.

       Of course, we do not foreclose the possibility that—in a
particular case—a district court’s failure to provide notice
before imposing a sentencing variance may present due process
concerns. For example—as in the hypothetical offered by

       22
            See supra note 18 (listing § 3553(a) factors).
       23
         Rita upheld the Fourth Circuit’s use of “an appellate
court presumption” that a within-guidelines sentence is
reasonable. Rita, 127 S. Ct. at 2465 (emphasis in original),
affirming 177 Fed. App’x 357 (4th Cir. 2006). However, Rita
did not require appellate courts to so presume.

                                -24-
Ausburn’s counsel at oral argument—a witness or victim
representative might allege theretofore-unrevealed facts at the
sentencing hearing which would, if unrebutted, clearly affect the
sentencing court’s thinking, and to which the defendant could
not effectively respond on short notice. Cf. Curran, cited supra
note 17. But such a scenario is not before us today, and the
mere possibility of such a case does not justify the broad rule
advocated by Ausburn. Rather, we expect that existing
procedures—such as the right to object to sentencing
information at any time upon good cause and the option to move
for a continuance to avoid unfair surprise—will provide an
effective remedy in individual cases,24 and our appellate review
is broad enough to police any violations of due process.25 Cf.
Burns, 501 U.S. at 155 (Souter, J., dissenting) (“[E]xisting
process provides what is due without resort to [the proposed]
requirement.”).

       In sum, we decline to adopt a constitutional rule requiring
a sentencing court to give advance notice before imposing any
sentence outside of the advisory guideline range.26 Further,


       24
         See Fed. R. Crim. P. 32(i)(1) (“[T]he court . . . may, for
good cause, allow a party to make a new objection at any time
before sentence is imposed.”); Virgin Islands v. Charleswell,
115 F.3d 171, 174–75 (3d Cir. 1997) (discussing considerations
in granting or denying a request for continuance in a criminal
case and noting that “a rigid insistence on expedition despite a
legitimate reason for delay may deprive an accused of due
process of law” (internal quotation marks omitted)).
       25
          See United States v. Khorozian, 333 F.3d 498, 507 (3d
Cir. 2003) (stating that denial of “a request for a continuance
constitutes an abuse of discretion . . . when it [is] so arbitrary as
to violate due process” (internal quotation marks omitted)).
       26
           Of course, nothing in the above analysis should
discourage a district court from giving the parties advance word
of its thinking if, prior to the hearing, the court is strongly
inclined to impose a sentence outside (above or below) the
advisory range. Such notice, where practicable, will usually

                                -25-
because the specific facts of this case do not show that Ausburn
was subjected to any unfair surprise at sentencing, Ausburn’s
due process challenge must fail.

                                B.

      We now turn to Ausburn’s claim that the sentence
imposed by the District Court was unreasonable.

        It is common ground that, after Booker: (1) a sentencing
court, though it must continue to consult the sentencing
guidelines on an advisory basis,27 has discretion to craft an
appropriate sentence falling anywhere within the range of
punishments authorized by Congress; and (2) “appellate courts
must review [these] sentences for reasonableness.” United
States v. Charles, 467 F.3d 828, 830 (3d Cir. 2006), cert. denied,
127 S. Ct. 1505 (2007). Further, it is clear that both the district
court’s crafting of an appropriate sentence and the appellate
court’s review of that sentence for reasonableness must be
“guided by the factors set forth in 18 U.S.C. § 3553(a).”28


promote both fairness and the efficient administration of justice
by allowing the parties to better prepare and focus their
arguments to accord with the court’s concerns.
       27
           District courts “must continue to calculate a
defendant’s Guidelines sentence precisely as they would have
before Booker,” including “formally rul[ing] on the motions of
both parties and stat[ing] on the record whether they are
granting a departure and how that departure affects the
Guidelines calculation, and tak[ing] into account . . . pre-Booker
case law, which continues to have advisory force.” United
States v. Charles, 467 F.3d 828, 830–31 (3d Cir. 2006) (internal
quotation marks omitted), cert. denied, 127 S. Ct. 1505 (2007);
see also 18 U.S.C. § 3553(a)(4) (listing applicable guidelines
range as one of several factors which the district court must
consider in sentencing).
       28
         The section 3553(a) factors are listed in Part III.A,
supra. See supra note 17.

                               -26-
Cooper, 437 F.3d at 327.

        In considering a criminal defendant’s claim that a
sentence is unreasonable, a reviewing court asks whether the
district court: (1) exercised its discretion by giving “meaningful
consideration” to the § 3553(a) factors; and (2) applied those
factors reasonably by selecting a sentence grounded on reasons
that “are logical and consistent with the [§ 3553(a)] factors.” Id.
at 329–30 (internal quotation marks omitted). When we reach
“this last step, we apply a deferential standard, ‘the trial court
being in the best position to determine the appropriate sentence
in light of the particular circumstances of the case.’” United
States v. Hankerson, --- F.3d ----, 2007 WL 2177168, at *4 (3d
Cir. 2007) (quoting Cooper, 437 F.3d at 330);29 cf. Rita, 127 S.
Ct. at 2474 (Stevens, J., concurring) (“Although I would have
imposed a lower sentence had I been the District Judge, I agree
that he did not abuse his discretion in making the particular
decision that he did.”). However, we will not reach this last,
deferential step if we are not able first to satisfy ourselves that
the sentencing court actually exercised its discretion. Cf.
Cooper, 437 F.3d at 330 (noting that “[w]e are not sentencing
judges,” and that the matter for a reviewing court’s
determination is “whether the district judge imposed the
sentence he or she did for reasons that are logical and consistent
with the factors set forth in section 3553(a)” (internal quotation
marks omitted) (emphasis added)).


       29
           This latter step has been characterized as review of the
“substantive” reasonableness of the sentence, whereas the
former step—determining whether the district court actually
exercised its discretion—has been described as “procedural”
review. See Hankerson, --- F.3d at ----, 2007 WL 2177168, at
*4–6; United States v. Lessner, --- F.3d ----, 2007 WL 2257630,
at *15–16 (3d Cir. 2007); accord United States v. Bailey, 488
F.3d 363, 368 n.1 (6th Cir. 2007); Rita, 127 S. Ct. at 2482–83
(Scalia, J., concurring in part and in judgment). But cf. Rita, 127
S. Ct. at 2483 n.6 (Scalia, J., concurring in part and in judgment)
(“‘Substance’ and ‘procedure’ are admittedly chameleon-like
terms.”); Bailey, 488 F.3d at 368 n.1 (same).

                               -27-
        Therefore, in order to provide for effective appellate
review, the sentencing court must provide a record sufficient to
allow a reviewing court to conclude that the sentencing court
exercised its discretion.30 Of course, while the record must be
adequate for review, it need not be perfect. We have recognized
that “sentencing judges normally state and resolve sentencing
issues from the bench while the sentencing proceeding is
underway,” and that these contextual and “often spontaneous
remarks are addressed primarily to the case at hand and are
unlikely to be a perfect or complete statement of all of the
surrounding law.” Cooper, 437 F.3d at 330 n.8 (internal
quotation marks omitted); cf. Rita, 127 S. Ct. at 2468 (noting
that “the law leaves much . . . to the judge’s own professional
judgment,” and that “[s]ometimes the circumstances will call for
a brief explanation; sometimes they will call for a lengthier
explanation”).

       But if review in this area is necessarily flexible, and if “a
rote statement of the § 3553(a) factors,” will not always be
either necessary or sufficient to satisfy the requirements of
reasonableness,31 we have stated at least one concrete

       30
          As we stated in a different context in United States v.
Johnson, 388 F.3d 96 (3d Cir. 2004), “if the district court does
not articulate the reasons underlying its decision there is no way
to review its exercise of discretion.” 388 F.3d at 101; see
Cooper, 437 F.3d at 329 (adopting Johnson language); see also
id. at 330 n.9 (noting that “the requirement that a court actually
exercise [its] discretion . . . [is] not unique to sentencing
decisions,” but that this requirement is “applied whenever we
review decisions committed to the discretion of another entity”).

       31
          Compare Cooper, 437 F.3d at 329 (“The court need not
discuss every argument made by a litigant if an argument is
clearly without merit . . . .[or] discuss and make findings as to
each of the § 3553(a) factors if the record makes clear the court
took the factors into account in sentencing.” (citation omitted)),
with id. (“[A] rote statement of the § 3553(a) factors should not
suffice if . . . [a party] properly raises a ground of recognized

                               -28-
requirement to establish that the sentencing court gave
meaningful consideration to the relevant § 3553(a) factors: the
court must acknowledge and respond to any properly presented
sentencing argument which has colorable legal merit and a
factual basis. See Cooper, supra note 31; Jackson, 467 F.3d at
841 (“[T]he record must show . . . a recognition of, and response
to, the parties’ non-frivolous arguments.”);32 accord Rita, 127 S.
Ct. at 2468 (“The sentencing judge should set forth enough to
satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal
decisionmaking authority. . . . Where the defendant or
prosecutor presents nonfrivolous reasons for imposing a
different sentence . . . the judge will normally . . . explain why
he has rejected those arguments.” (citations omitted)).

                                1.

       The statement of reasons provided by the District Court
in this case—which is set forth above in substantially its


legal merit (provided it has a factual basis) and the court fails to
address it.” (internal quotation marks omitted)).
       32
         See generally United States v. Moore, 540 F.2d 1088,
1091–92 & nn. 3–8 (D.C. Cir. 1976) (separate statement of
Bazelon, C.J.) (reviewing cases and literature and
discussing—several years before the guidelines era—the
“salutary purposes generally served” by “a statement of
sentencing rationale”).
       We have expressly declined to hold that “a district court’s
statement that it considered both the defendant’s arguments and
the § 3553(a) factors at sentencing is by itself sufficient for
Booker purposes.” Cooper, 437 F.3d at 329 n. 6; see also
Jackson, 467 F.3d at 841; Charles, 467 F.3d at 837–38. Contra
United States v. Scott, 426 F.3d 1324, 1329–30 (11th Cir.
2005); United States v. Talley, 431 F.3d 784, 786 (11th Cir.
2005) (per curiam) (stating that once district court has
“acknowledg[ed]” that it considered defendant’s arguments and
the § 3553(a) factors, it is “unnecessary” for district court to
“elaborate on the basis for its sentence”).

                               -29-
complete form, see supra Part I.C.2—did not address at least
one potentially meritorious argument advanced by Ausburn.33
In particular, the District Court did not address Ausburn’s
argument that two cases recently decided in the same
district—both of which concerned sexual offenses involving
minors—provided bench marks for determining a proper
sentence, and that the court should hew close to the sentences in
those cases (thirty months and forty-six months) in order to
“avoid unwarranted sentence disparities among [similarly-
situated] defendants,” 18 U.S.C. § 3553(a)(6). Ausburn made


       33
           Also, the District Court did not comply with 18 U.S.C.
§ 3553(c). Section 3553(c) provides that the sentencing judge
“shall state in open court the reasons for its imposition of the
particular sentence.” 18 U.S.C. § 3553(c). In addition, if the
sentence is outside the guidelines range, the sentencing judge
must, in most cases, state “the specific reason for the imposition
of a [non-guidelines-range] sentence.” Id. § 3553(c)(2). The
reason for imposing a non-guidelines-range sentence “must also
be stated with specificity in the written order of judgment and
commitment.” Id. In the case at bar, the written order of
judgment and commitment does not appear to make any mention
of the District Court’s “reason for the imposition of a [non-
guidelines-range] sentence.”
        Since we remand on Booker grounds, there is no formal
necessity for us to reach this statutory issue. However, in light
of the Supreme Court’s recent dicta in Rita, we have thought it
useful to draw attention to the continued vitality of § 3553(c).
See Rita, 127 S. Ct. at 2468 (treating § 3553(c) as still in force,
post-Booker, and discussing requirements under § 3553(c)); cf.
id. at 2482–83 (Scalia, J., concurring in part and in judgment)
(observing that the “explanations” required by § 3553(c) “help
the [Sentencing] Commission revise the advisory Guidelines to
reflect actual sentencing practices consistent with the statutory
goals” and noting that “reasonableness review g[i]ve[s]
appellate courts the necessary means to reverse a district court
that . . . does not comply with § 3553(c)’s requirement for a
statement of reasons”); id. at 2488 (Souter, J., dissenting)
(referring to “unorthodox factfinding necessary to justify a
sentence outside the Guidelines range” under § 3553(c)(2)).

                               -30-
this argument in his pre-sentencing filings, at the sentencing
hearing, and even in an objection immediately following the
District Court’s pronouncement of sentence. See supra Part
I.C.2. In its initial statement of reasons, the District Court
merely recited that it had “considered . . . the need to avoid
unwarranted sentencing disparities among the defendants with
similar records who found themselves guilty of similar
conduct.” Upon objection to the 144-month sentence by
Ausburn’s counsel on the grounds of an unwarranted disparity
with the sentence in Kenrick,34 the District Court made the
following statement:

                Well, let me just add. As to the position of
       trust, I’ve already considered that in dealing with
       the factors for the—from the [PSR] and for the
       point count thereunder.

              I don’t know what else to say. If you think
       other than this is a serious crime, and four years
       of imprisonment I find to be insufficient. Six
       years I find to be insufficient. And you can
       handle, handle that matter on appeal.

       To the degree that this comment may be thought
responsive to counsel’s objection, it is inadequate to
demonstrate that the District Court gave meaningful
consideration to counsel’s arguments about an unwarranted
disparity between the Ausburn and Kendrick sentences.35 The


       34
          See supra Part I.C.2 (quoting defense counsel’s
statement that: “I can only be afraid that [the 144-month
sentence] has something to do with something I’m unaware of,
because this case, as I see it, is very, very, so close to the
Kenrick case [where the sentence was forty-six months]. . . .”);
cf. Kenrick, 2007 WL 2384232, at *1, *3–4 (Parts II.A, II.D).
       35
         We are also aware that the sentencing in this case took
place before our decision in Charles, in which Charles claimed
an unwarranted sentencing disparity. See 467 F.3d at 831. As

                               -31-
District Court’s language, though brief, may be read as a
reference to the fact that Ausburn, unlike Kenrick, occupied a
position of trust as a police officer. This is certainly a relevant
consideration. But in the above excerpt from the District
Court’s statement of reasons, the court seems to imply that the
advisory guidelines range already incorporated an enhancement
based on Ausburn’s abuse of a position of trust. See U.S.S.G.
§ 2A3.2(b)(1) (2002) (providing for two-offense-level
enhancement “[i]f the victim was in the custody, care, or
supervisory control of the defendant”); see also supra note 5.
The Supreme Court has recently explained that “[c]ircumstances
may well make clear that the judge rests his decision upon the
Commission’s own reasoning that the Guidelines sentence is a
proper sentence . . . in the typical case, and that the judge has
found that the case before him is typical.” Rita, 127 S. Ct. at
2468. By contrast, in this case, the District Court alluded to the
guidelines calculation but nonetheless imposed a sentence more
than twice as high as that called for by the guidelines. In so
doing, the District Court gave no indication of why Ausburn’s
“circumstances present[ed] an ‘atypical case’ . . . fall[ing]
outside the ‘heartland’ to which the United States Sentencing
Commission intends each individual Guideline to apply.”36 Rita,



an appellate court, we noted that “[w]e are in no position to
determine — as a matter of fact — whether Charles’s
circumstances exactly paralleled those of the defendants in these
cases; we leave that determination to the sentencing judge.” Id.
at 833 n.7. We also stated that we will “tolerate statutory
sentencing disparities so long as a judge demonstrates that he or
she viewed the Guidelines as advisory and reasonably exercised
his or her discretion . . . .” Id. at 833.
       36
          In other cases, we have emphasized the fact that a
sentencing court must provide a “fuller explanation” when it
“imposes a sentence that varies significantly from the advisory
Guidelines range and a party has made objections with legal
merit that the variance is unjustified by the record.” Kononchuk,
485 F.3d at 204. And, in general, our cases have endorsed the
proposition stated in United States v. Jordan, 435 F.3d 693,

                               -32-
127 S. Ct. at 2461. The District Court may have had in mind
reasons that were “logical and consistent with the [§ 3553(a)]
factors,” Cooper, 437 F.3d at 330 (internal quotation marks
omitted), but it did not articulate those reasons. Cf. Kononchuk,
485 F.3d at 206 (“If there is a way to find this sentence
reasonable in light of the § 3553(a) factors, the District Court
did not articulate it. Due to this failure of articulation, we
cannot be satisfied that the District Court gave ‘meaningful
consideration’ to the § 3553(a) factors.”).

       Where the record is inadequate, we do not fill in the gaps
by searching the record for factors justifying the sentence. Cf.
Cooper, 437 F.3d at 330 (“The question is not how we ourselves
would have resolved the factors identified as relevant by section
3553(a) . . . .” (internal quotation marks omitted)).37
Accordingly, we will vacate the sentence and remand for a new
sentencing proceeding.



696–97 (7th Cir. 2006), cert. denied, 126 S. Ct. 2050 (2006),
that: “The farther a sentence varies from the advisory guidelines
range, the more compelling the judge’s reasons must be.” See
United States v. King, 454 F.3d 187, 195 (3d Cir. 2006) (quoting
Jordan); United States v. Manzella, 475 F.3d 152, 161 (3d Cir.
2007) (citing King); cf. Rita, 127 S. Ct. at 2468 (“Where the
judge imposes a sentence outside the Guidelines, the judge will
explain why he has done so.”); 18 U.S.C. § 3553(c)(2) (see
discussion supra note 33). But cf. Rita, 127 S. Ct. at 2467 (“[A]
number of circuits adhere to the proposition that the strength of
the justification needed to sustain an outside-Guidelines
sentence varies in proportion to the degree of the variance. . . .
We will consider that approach next Term in United States v.
Gall, No. 06-7949.”); United States v. Gall, 446 F.3d 884 (8th
Cir. 2006), cert. granted, 127 S. Ct. 2933 (June 11, 2007).
       37
         Similarly, the government’s cataloguing, in its brief on
appeal, of record evidence which it argues is “sufficiently
extraordinary to support Ausburn’s sentence of 144 months,”
see Appellee’s Br. 37–38, cannot substitute for the lack of such
a statement by the District Court.

                              -33-
                             ***

      For the reasons stated above, the sentence imposed
March 31, 2006 is vacated, and the case is remanded for further
proceedings consistent with this opinion.




                             -34-
