 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 8, 2016            Decided February 14, 2017

                         No. 15-3053

                UNITED STATES OF AMERICA,
                        APPELLEE

                              v.

                 JEFFREY NORMAN JACKSON,
                        APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:14-cr-00222-1)


    Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the brief was A.J.
Kramer, Federal Public Defender. Tony Axam, Jr., Assistant
Federal Public Defender, entered an appearance.

    Elissa Hart-Mahan, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief was
Gregory Victor Davis, Attorney. Frank P. Cihlar, Attorney, U.S.
Department of Justice, entered an appearance.

   Before: KAVANAUGH and PILLARD, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
                                 2

   Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.

    RANDOLPH, Senior Circuit Judge: Jeffrey Norman Jackson
appeals his above-Guidelines sentence of imprisonment on the
grounds that the district court failed to give valid reasons for his
sentence and that the reasons the court did mention were invalid.

     Jackson began committing his crime in this case while he
was pleading guilty and being sentenced for a nearly identical
crime. After being sentenced for his first offense, Jackson
continued his criminal activity, despite the district court’s
leniency in giving him probation rather than imprisonment.

    Jackson’s earlier crime involved Unlimited Security, Inc.,
a company he founded and co-owned. The company provided
security services to the local and federal government. At one
time, Unlimited Security employed as many as 500 people. In
2002, his company filed for Chapter 11 bankruptcy protection.
Unlimited Security had collected federal tax withholdings from
the wages of its employees. Jackson’s company was obligated
to pay these tax withholdings to the U.S. Treasury. Instead,
while his company was in bankruptcy, Jackson – as the
company’s chief executive officer – diverted $373,000 to
another one of his businesses. In 2006, Judge Urbina of the
United States District Court for the District of Columbia
sentenced him to five years’ probation.

     While on probation for that crime, and before his sentencing
in October 2006, Jackson began committing the offense for
which he was sentenced in this case. In 2005 he formed
Innovative Security Services, LLC. For the next four years, he
failed to pay a total of nearly $600,000 in federal payroll taxes
that his company had withheld from the wages of its employees.
Jackson used these funds for personal items such as jewelry,
                                3

clothing, furniture, and rent. After entering into an agreement
with the government, Jackson again pleaded guilty, this time to
a violation of 26 U.S.C. § 7202 – willful failure to pay over
federal employment taxes. A violation of § 7202 carries a five-
year maximum sentence of imprisonment. Jackson’s plea
agreement placed his Sentencing Guidelines range at 27-33
months; his plea agreement stated that this sentencing range was
not binding on the district court. The district court sentenced
Jackson to 42 months’ imprisonment – 9 months more than the
top of the Guidelines range. The sentence included an order for
Jackson to make restitution and to serve a term of supervised
release.

                                I.

     Jackson wants his sentence set aside because, at the hearing,
the district court did not sufficiently explain the reasons for it.
At sentencing, a district court must provide “the specific reason”
for a sentence outside the Guidelines range. 18 U.S.C.
§ 3553(c)(2); see Gall v. United States, 552 U.S. 38, 50 (2007).
When the court announced Jackson’s sentence of 42 months, his
attorney did not object. To prevail in his appeal, Jackson must
therefore convince us that the district court (1) “committed
error”; (2) that the error was “plain or obvious”; (3) that it
affected “his substantial rights”; and (4) that it “seriously”
affected “the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Hunt, 843 F.3d 1022, 1029 (D.C.
Cir. 2016) (alterations and quotation marks omitted). An error
affects “substantial rights” only if the defendant establishes with
“a reasonably probability that, but for the error, the outcome of
the proceeding would have been different.” United States v.
Mack, 841 F.3d 514, 522 (D.C. Cir. 2016) (quoting Molina-
Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)).
                                4

     It is little wonder that Jackson’s attorney did not interpose
the objection now raised on appeal. Jackson, and anyone else
present at his sentencing hearing, must have understood why the
district court imposed an above-Guidelines sentence of 42
months. A central, uncontested consideration at the hearing was
Jackson’s commission of this crime while he was being
sentenced and placed on probation for committing a crime with
a common element – namely, stealing his employees’
withholding taxes to use for his personal benefit.

     The prosecutor stated that this was “the second time that
this defendant has appeared in this courthouse to be sentenced
for stealing employment taxes.” Sentencing Transcript 3. The
prosecutor added that Jackson obviously knew about his “duty
to truthfully account for and pay over payroll taxes.” Id. at 4.
Jackson’s past offense not only demonstrated willfulness, but
also proved that despite a lenient sentence, he continued to
commit a nearly identical offense. Id. at 6. Jackson’s attorney
acknowledged that Jackson “ended up on a very, very, very
slippery slope twice,” a revealing metaphor with no exonerating
force. Id. at 20.

     In committing both of these offenses, Jackson had no regard
for the law or for the extreme distress he inflicted on his
employees. Taking all of this into account, the district court
summed up that Jackson had “been given [a] break . . . by Judge
Urbina on the bankruptcy fraud,” but rather than rehabilitating
himself after committing that offense, he committed another and
wound up “creating a nightmare for [himself] and a lot of other
folks in the process.” Sentencing Transcript 22-23. Stating that
Jackson was “obviously not deterred by Judge Urbina’s
sentence” and that a Guidelines range “sentence is not adequate
in this case,” the court sentenced Jackson to 42 months’
imprisonment. Id. at 23.
                                5

      We believe the court adequately explained why it was
giving Jackson that sentence. We have sustained other above-
Guidelines sentences imposed in light of the similarity of the
defendant’s past offense. In United States v. Ransom, 756 F.3d
770, 774-75 (D.C. Cir. 2014), for instance, we upheld an above-
Guidelines sentence based on the district court’s explanation that
the defendant had committed his latest offense while on
probation for a “substantially similar” one. This explanation,
we added, “makes it plain” that the sentencing court “did not
deem the Guidelines calculation in the report to have fully
accounted for Ransom’s criminal history.” Id. at 775. See also
U.S. SENTENCING GUIDELINES MANUAL § 4A1.1. The district
court in Ransom also referred to the defendant’s “abuse of trust,”
as the district court did here. Ransom, 756 F.3d at 774; see
Sentencing Transcript 22.

                               II.

    Jackson argues that whatever the adequacy of the district
court’s statements at the sentencing hearing, the court’s written
report of the sentence was deficient.

     His argument raises a recurring issue in appellate review of
sentences. The issue is whether the “Statement of Reasons”
each sentencing court prepares and submits to the Sentencing
Commission pursuant to 28 U.S.C. § 994(w) has any bearing on
the validity of the court’s sentence. Although the issue was not
briefed in this case (but was a topic of oral argument), we have
discretion to consider it. See U.S. National Bank of Oregon v.
Independent Insurance Agents of America, Inc., 508 U.S. 439,
445-47 (1993).

     By the time of Jackson’s sentencing, one of the two statutes
relating to the Statement of Reasons required that within 30 days
“following entry of judgment in every criminal case,” the
                                  6

sentencing court had to submit to the Sentencing Commission “a
written report of the sentence, the offense for which it is
imposed, the age, race, sex of the offender, and information
regarding factors made relevant by the guidelines.” 28 U.S.C.
§ 994(w)(1). Under the other statute, if the sentence was outside
the Guidelines range, the court had to state “with specificity” on
the form the reasons for the variance. 18 U.S.C. § 3553(c)(2).
The form, which the Commission approved, stated that it was
“Not for Public Disclosure.” The Chief Judge of each district
court was charged with the duty of ensuring that the judges of
the court comply with this reporting requirement. 28 U.S.C.
§ 994(w)(1).1 These requirements remain today.

     A different system had been in effect before 2010. Between
2003 and 2010, 18 U.S.C. § 3553(c)(2) required a sentencing
court not only to state the reasons for its sentence in open court,
but also to state in its order of judgment and commitment the
reason for not imposing a sentence within the Guidelines range.2
Congress amended § 3553(c)(2) by eliminating the requirement
that sentencing courts state their reasons in the judgment and
commitment order.3 In its place, Congress inserted language

     1
      The history of § 994(w)(1) is set forth in United States v. Ray,
273 F. Supp. 2d 1160 (D. Mont. 2003), aff’d 375 F.3d 980 (9th Cir.
2004). For background on the Sentencing Commission, see Mistretta
v. United States, 488 U.S. 361, 363-370 (1989).
     2
       This requirement, in effect from 2003 until 2010, stemmed from
the Prosecutorial Remedies and Other Tools to end the Exploitation of
Children Today Act of 2003, Pub. L. No. 108-21, § 401(c)(1), 117
Stat. 650, 669-70 (2003).
     3
      In what appears to be an oversight, Congress neglected to delete
the same language in the corresponding appellate review provision, 18
U.S.C. § 3742(f)(2), which continues to speak of “the required
statement of reasons in the order of judgment and commitment.”
                                7

requiring the court to state the reason for a variance in the
court’s § 994(w)(1)(B) report to the Sentencing Commission.
See Pub. L. No. 111-174, § 4, 124 Stat. 1216, 1216 (May 27,
2010).

     Our court has not addressed the effect of the 2010
amendment. See United States v. Godoy, 706 F.3d 493, 497
(D.C. Cir. 2013) (declining to “wade into that murky water”).
But the First Circuit has. In light of this “decoupling” of the
judgment and the Statement of Reasons, plus the Sentencing
Commission’s “control over the content of the form as part of its
reporting duties to Congress,” the First Circuit doubted that after
2010 the completed form did anything more than facilitate data
collection. United States v. Vazquez-Martinez, 812 F.3d 18, 25-
26 (1st Cir. 2016). Other courts of appeals have concluded that
a district court’s § 994(w)(1)(B) Statement of Reasons has no
bearing on the validity of its sentence. See United States v.
Shakbazyan, 841 F.3d 286, 292 (5th Cir. 2016), petition for cert.
filed (Jan. 24, 2017) (No. 16-929) (“Moreover, the Statement of
Reasons form is intended ‘to serve a record-keeping function’
and not to provide ‘a procedural safeguard for any particular
defendant.’”); United States v. Sinkler, 555 F. App’x 217, 222
(3d Cir. 2014) (“Congress imposed § 3553(c)(2)’s written
statement requirement to improve data collection for use in
reports to Congress. See 28 U.S.C. § 994(w)(1).”); United
States v. Denny, 653 F.3d 415, 422 (6th Cir. 2011) (the
Statement of Reasons form “was merely intended to serve a
record-keeping function” and the forms “have not always been
crafted with the same precision that judges heed during the oral
sentence”). See also United States v. Gracesqui, 512 F. App’x
97, 99 (2d Cir. 2013) (relying on Denny).

    There are good reasons for concluding that the Statements
of Reasons district judges submit to the Sentencing Commission
are purely administrative, to assist the Commission’s data-
                                8

gathering function, not to confer on a sentenced defendant some
after-the-fact procedural protection. On its face § 994(w)
contemplates that each district court’s report will be sent after
the court’s announcement of the sentence in open court and after
entry of the judgment and commitment order – in other words,
after sentencing is completed. The statute thus provides that the
sentencing court will submit its report to the Commission
“within 30 days following” – the word “following” is
significant – “entry of judgment in every criminal case.” 28
U.S.C. § 994(w)(1).

      This 30-day post-judgment deadline would make little sense
if the Statement of Reasons determined the validity of a sentence
already imposed. Defendants wishing to appeal their sentence
must file a notice of appeal within 14 days of the entry of
judgment. FED. R. APP. P. 4(b)(1). See also FED. R. CRIM. P.
35(a) (allowing the district court to correct clear sentencing
errors within 14 days). Yet the general rule is that after a
defendant notices an appeal, the district court loses jurisdiction
over the case. Federal Rule of Criminal Procedure 37(a)
recognizes as much, as have we. See United States v. Hallford,
816 F.3d 850, 855 n.4 (D.C. Cir. 2016) (citing Griggs v.
Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per
curiam)). That the defendant must file a notice of appeal before
the written statement is even due strongly suggests that the
completed forms are for the Sentencing Commission’s benefit
in compiling sentencing data and in providing Congress with
annual reports. See 28 U.S.C. § 994(w)(2) & (3).

    Consider also the requirement, added in 2003, see Ray, 273
F. Supp. 2d at 1162, that the “Chief Judge of each district court”
ensure that district judges submit the written Statement of
Reasons to the Commission. 28 U.S.C. § 994(w)(1). This is
consistent with the view of the courts of appeals, cited above,
that the Statement of Reasons – “issued by the Judicial
                                9

Conference and approved by the United States Sentencing
Commission,” 28 U.S.C. § 994(w)(1)(B) – is merely an
information-gathering device. See Vazquez-Martinez, 812 F.3d
at 25-26. The same may be said of the notation on the form that
it is “Not for Public Disclosure.”

      Despite these considerations, we do not decide today
whether a deficient Statement of Reasons submitted to the
Sentencing Commission could ever affect the validity of an
otherwise valid sentence. As we have said, the parties did not
brief the issue and we recognize that the effect of the 2010
amendment could be viewed differently. In United States v.
Brown, 808 F.3d 865, 873-74 (D.C. Cir. 2015), for example, we
treated an inadequate § 994(w)(1)(B) Statement of Reasons as
if it had some bearing on the legality of an above-Guidelines
sentence – albeit without any briefing on or attention to
§ 3553(c)’s reference to § 994(w)(1)(B).

                              III.

     In this case, the court dated its completed form three days
after the sentencing hearing and filed it on the criminal docket,
with access restricted to counsel of record and the court, ten
days before Jackson filed his notice of appeal. See Criminal
Docket Sheet, United States v. Jackson, No.
1:14-cr-00222-RJL-1 (D.D.C.). (It is not entirely clear when the
court submitted the completed form to the Sentencing
Commission.) On the form, the court checked the reasons for
the variance in Jackson’s sentence: (1) “the nature and
circumstances of the offense and the history and characteristics
of the defendant”; (2) “to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment
for the offense”; (3) and “to afford adequate deterrence to
criminal conduct.” Because the court did not give any further
explanation on the form, Jackson claims that this constitutes
                                10

reversible error. Jackson failed to lodge this objection with the
district court, so we again review for plain error.

     Even if the district court’s completion of the report were
deficient, this would not warrant remanding the case or setting
Jackson’s sentence aside. Our court has never decided a case in
which the oral statement was sufficient but the written statement
was not. But every other circuit with jurisdiction over criminal
appeals has affirmed the sentence in that situation, even when
the statute required the Statement of Reasons to be set forth in
the judgment. See United States v. Vazquez-Martinez, 812 F.3d
18, 25 (1st Cir. 2016); United States v. Verkhoglyad, 516 F.3d
122, 133, 137 (2d Cir. 2008); United States v. Cooper, 394 F.3d
172, 176 (3d Cir. 2005); United States v. Tyler, 614 F. App’x
108, 110 (4th Cir. 2015) (per curiam); United States v.
Comeaux, 371 F. App’x 468, 470-71 (5th Cir. 2010) (per
curiam); United States v. Williams, 396 F. App’x 212, 220 (6th
Cir. 2010); United States v. Baker, 445 F.3d 987, 991-93 (7th
Cir. 2006); United States v. Orchard, 332 F.3d 1133, 1141 n.7
(8th Cir. 2003); United States v. Daychild, 357 F.3d 1082, 1107-
08 (9th Cir. 2004); United States v. Hunter, 464 F. App’x 754,
764 (10th Cir. 2012); United States v. Claiborne, 626 F. App’x
848, 851 (11th Cir. 2015) (per curiam). That makes perfect
sense. What would make no sense is for us to remand the case
to the district court to redo the form and repeat what it said in
open court. The decisions just cited are also consistent with the
settled law in this and other circuits that “the oral sentence
controls,” United States v. Weathers, 631 F.3d 560, 562 (D.C.
Cir. 2011), and that “the written judgment form is a nullity to the
extent it conflicts with the previously pronounced sentence.”
United States v. Booker, 436 F.3d 238, 245 (D.C. Cir. 2006); see
FED. R. CRIM. P. 35(c) (“As used in this rule, ‘sentencing’ means
the oral announcement of the sentence.”).
                                 11

     When we have discovered deficiencies in a sentencing
court’s Statement of Reasons we have focused on whether this
had any impact on our duty to review the sentence.4 In two
decisions, for instance, we held that a written Statement of
Reasons was sufficient because it incorporated the district
court’s oral explanation by reference. See United States v.
Warren, 700 F.3d 528, 532 (D.C. Cir. 2012); United States v.
Wilson, 605 F.3d 985, 1035 (D.C. Cir. 2010). When the
sentencing court’s oral explanation allowed us “to conduct
appellate review” of the sentence, we decided that “a remand is
unnecessary.” Wilson, 605 F.3d at 1035. In Brown, 808 F.3d at
873, we stated that a written deficiency was “a serious problem
because the trial judge’s in-court statement is, itself,
insufficient.” The combination of the deficient oral and written
statement precluded “appellate review of the substantive
reasonableness of the sentence.” Id. at 874 (quoting United
States v. Akhigbe, 642 F.3d 1078, 1087-88 (D.C. Cir. 2011), and
In re Sealed Case, 527 F.3d 188, 193 (D.C. Cir. 2008)). A




     4
       Quoting United States v. Akhigbe, 642 F.3d 1078, 1087-88
(D.C. Cir. 2011), and In re Sealed Case, 527 F.3d 188, 193 (D.C. Cir.
2008), in which sentencing occurred before the amendment to
§ 3553(c)(2), our opinion in Brown, 808 F.3d at 874 – a case in which
sentencing occurred after the amendment to § 3553(c)(2) – stated that
insufficient oral and written explanations of a sentence prevent the
public from “learn[ing] why the defendant received a particular
sentence.” But that sort of harm cannot be caused by deficiencies in
the written report to the Commission because the report is not part of
the public record. See United States v. Pedroza-Orengo, 817 F.3d
829, 837 (1st Cir. 2016). As we have mentioned, the form approved
by the Sentencing Commission states that it is “Not for Public
Disclosure.”
                                  12

sufficient oral explanation, which is what we have here,
eliminates this problem.5

     We therefore join every other circuit in holding that because
the district court’s oral explanation sufficed, any written
deficiency did not affect Jackson’s substantial rights and
therefore does not warrant vacating Jackson’s sentence or
remanding the case.

                                 IV.

     Jackson also claims that his sentence should be set aside for
two other reasons. The first stems from the district court’s
comment during the hearing that Jackson deserved “not only an
adequate punishment but a punishment that’ll deter you and
others.” Sentencing Transcript 22. Jackson claims that the court
therefore failed to impose a sentence “sufficient, but not greater
than necessary” to achieve certain statutory sentencing goals. 18
U.S.C. § 3553(a).

     Jackson’s interpretation ignores the context of the court’s
remark. Sentencing courts are required to consider the need to
deter others and the need to deter the defendant. 18 U.S.C.
§ 3553(a)(2)(B) & (C). When the district court made the
statement Jackson quotes, it had just heard the prosecution and
the defense refer to the similarity of Jackson’s current and past


     5
       See In re Sealed Case, 527 F.3d at 198 n.3 (Kavanaugh, J.,
dissenting). Without contradiction in the majority opinion, Judge
Kavanaugh wrote that the “failure to memorialize in writing the
reasons the court gave orally cannot constitute plain error: Failing to
do so could not possibly ‘affect the outcome of the district court
proceedings’ or ‘seriously affect the fairness, integrity, or public
reputation of judicial proceedings.’” Id. (alterations omitted). See
United States v. Pruitt, 813 F.3d 90, 92-93 (2d Cir. 2016).
                               13

offense. It is clear enough that the court meant that the sentence
must be sufficiently stiff to deter Jackson and others from
committing similar crimes in the future. The court’s remark
therefore did not render the sentence unlawful. See United
States v. Brinson-Scott, 714 F.3d 616, 625 (D.C. Cir. 2013);
United States v. Schiradelly, 617 F.3d 979, 982-83 (8th Cir.
2010) (per curiam).

     Jackson’s second claim is that his sentence was too severe.
As he sees it, the court improperly gave him an above-
Guidelines sentence as punishment for his past business success.
Jackson misunderstands the district court’s statements during the
hearing. The court said that this was “a sad case” because
Jackson “had the potential to have a successful story.”
Sentencing Transcript 22. That observation was not a
justification for the sentence. Instead, the court was focusing on
deterrence principles and did so reasonably. See supra 3-4. The
district court’s sentencing decisions are entitled to deference.
See United States v. Gardellini, 545 F.3d 1089, 1093, 1096
(D.C. Cir. 2008). Given Jackson’s commission of an offense
while he was on probation for a similar offense, the district
court’s sentence was not an abuse of discretion.


                                                       Affirmed.
