             United States Court of Appeals
                         For the First Circuit
No. 05-1725

                       UNITED STATES OF AMERICA,

                               Appellant,

                                   v.

                              COREY SMITH,

                          Defendant, Appellee.


              APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Morris E. Lasker,* Senior U.S. District Judge]


                                 Before

                          Boudin, Chief Judge,

                      Stahl, Senior Circuit Judge,

                       and Howard, Circuit Judge.



     Patrick M. Hamilton, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief for
appellant.
     Jonathan Shapiro with whom Stern, Shapiro, Weissberg & Garin,
LLP was on brief for appellee.



                             April 7, 2006




     *
         Of the Southern District of New York, sitting by designation.
            BOUDIN, Chief Judge.         Corey Smith pled guilty to six

counts of crack distribution and one count of conspiring to sell

crack.     Applying the sentencing guidelines, the district court

calculated      Smith's   sentencing    range    to   be    100-125    months     of

imprisonment, but then sentenced Smith to 46 months of imprisonment

(followed by six years of supervised release).              The government now

appeals, arguing that Smith's sentence is unreasonably low.

            In October and November of 2003, Smith--who was twenty-

one years old at the time--facilitated four sales and made three

direct sales of crack cocaine to Adolfo Brito, an undercover police

officer.       All of the transactions, save perhaps one, took place

within 1,000 feet of either the George A. Lewis Middle School or

the Little Scobie Playground.            Smith was arrested on April 15,

2004,    and    eventually    pled     guilty    to   six    counts      of    crack

distribution and one count of conspiring to sell crack.                  21 U.S.C.

§ 841(a) (2000).

            Soon after his arrest, Smith was released to an in-

patient drug treatment program at Spectrum House and successfully

completed the initial treatment program.              In January      2005, after

his guilty plea, he was transferred to a "sober house" run by the

South Middlesex Opportunity Council.            After a series of violations

of   the   sober    house's    rules--including        staying     out        without

authorization--Smith's release was revoked by a magistrate judge on




                                       -2-
February 8, 2005, and he was thereafter detained until April 19,

2005, when his sentence was imposed.

          The pre-sentence report calculated Smith's total offense

level as 25, based on the quantity of crack (14.25 grams), the

proximity of his offenses to a school and playground, and Smith's

acceptance of responsibility.     Because of prior convictions for

various offenses, including the possession of marijuana with the

intent to distribute, Smith had a criminal history category of V

(based on eleven criminal history points).1

          The probation officer found no basis for a downward

departure under the guidelines.    This meant that Smith's guideline

sentencing range was 100 to 125 months.     However, the sentencing

occurred after United States v. Booker, 125 S. Ct. 738 (2005), so

the district court was not restricted to a guideline sentence.   It

appears that the probation officer recommended a below-guideline

sentence of sixty months based on considerations such as Smith's

limited role in the offenses, his rehabilitation from his drug

habit, and the allegedly minor nature of his prior offenses.

          After hearing argument from the government and defense

counsel, and after an allocution by the defendant, the district



     1
      Smith was convicted of these crimes embracing six separate
incidents spanning the period May 16, 2000, to December 3, 2002.
He served time in prison after violating the conditions of his
probation stemming from his drug possession conviction, and it was
soon after his release from that period of incarceration that he
was arrested for the crime in question here.

                                  -3-
judge (over the government's objection) sentenced Smith to 46

months in prison followed by six years of supervised release, and

recommended   drug   treatment   for    Smith   while   in   prison.   In

explaining the sentence, the district judge addressed Smith as

follows:

           I think you're a man who has done wrong
           things, gotten in trouble, find yourself in a
           fix, but you're young and you may turn around
           and I'd like to see you turn around rather
           than get crushed. . . .

           Against you is the nature of the offense that
           you committed, an aggravated selling of
           controlled substance regularly in a location
           close to a school, and although I don't
           suppose you sat and thought about whether it's
           close to a school or not, I'm sure you knew
           there were a lot of little kids in that area,
           and that's a hell of a place to be selling
           cocaine, and the law makes it more of an
           offense, but in your favor is the fact that
           you were involved in the offense for a limited
           period of time and [d]o not appear to have
           been a leader. You appear to have committed
           the crime to support your drug habit.

           While on pretrial release you did participate
           in drug abuse treatment and, for the most
           part, you received positive reports, although
           I guess you had a couple of slips, didn't you?
           And during pretrial release, you did obtain
           employment.

           Bearing all these things in mind and the
           requirements of the statute that the sentence
           imposed be serious -- I mean, be sufficient to
           take into consideration the seriousness of the
           offense, the protection of society, your own
           needs to improve and to make sure that the
           sentence is sufficient but not excessive, and
           bearing in mind that the Probation Department
           concludes that in accordance with this
           statute, a sentence substantially below the

                                  -4-
                 guidelines is appropriate. I'm imposing the
                 same sentence on you as I have imposed on the
                 two defendants in this case who have appeared
                 before me already, although that sentence is
                 somewhat below what the probation guideline
                 recommends in your case.

                 In     Booker,       the    Supreme    Court     held    that    mandatory

guidelines            based    on     judge-made       findings    violated       the   Sixth

Amendment,        but,        after    a    severance     analysis,       ruled    that   the

guidelines should be treated as "effectively advisory." 125 S. Ct.

at 750-52, 757.           The Court further stated that sentences would be

reviewable for "reasonableness," and that this review would apply

regardless of whether sentences fell within the advisory guidelines

range.       Id. at 765-66.

                 The sentencing court's discretion remains constrained by

18 U.S.C. § 3553(a) (2000), which requires courts to consider a

number of factors in imposing sentences, United States v. Pho, 433

F.3d       53,   61-62        (1st    Cir.    2006),     including       "the    nature   and

circumstances of the offense and the history and characteristics of

the defendant," 18 U.S.C. § 3553(a)(1), "the need for the sentence

imposed," id. § 3553(a)(2),2 and "the need to avoid unwarranted




       2
      In making this determination, courts must consider the need
for the sentence "to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the
offense"; "to afford adequate deterrence to criminal conduct"; "to
protect the public from further crimes of the defendant"; and "to
provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner." 18 U.S.C. § 3553(2)(A)-(D).

                                                -5-
sentence disparities among defendants with similar records who have

been found guilty of similar conduct," id. § 3553(a)(6).

            The   statute    also   requires   courts    to   consider   the

sentencing range established by the guidelines.               18 U.S.C. §

3553(a)(4); accord Booker, 125 S. Ct. at 764-65.          In United States

v. Jiménez-Beltre, --- F.3d ---, 2006 WL 562154 (1st. Cir. Mar. 9,

2006) (en banc), this court stated that the guidelines remained "an

important    consideration"     because    they   represented    the     only

"integration of the multiple factors" identified in the statute,

often reflected past practice, and bore the imprimatur of the

expert agency charged with developing them. Id. at *2-*3 (emphasis

omitted).

            For the same reasons, we said that a district court

should normally begin with a guideline calculation, and that after

considering departures, the district court should decide whether

"other factors" (beyond the guidelines) warranted an ultimate

sentence above or below the guideline range.        Jiménez-Beltre, 2006

WL 562154, at *3.     As for review for reasonableness, we stressed

the need for "a plausible explanation and a defensible overall

result."    Id. at *4.   The "within the range" sentence involved in

Jiménez-Beltre was easily affirmed.        Id. at *3-*5.

            The present case is more difficult.         The sentence is not

a modest variance from the guideline range, but less than half the

minimum of the range.       "[T]he farther the judge's sentence departs


                                     -6-
from       the   guidelines       sentence      .     .   .   the   more   compelling       the

justification based on factors in section 3553(a) that the judge

must offer in order to enable the court of appeals to assess the

reasonableness of the sentence imposed."                         United States v. Dean,

414    F.3d      725,     729    (7th    Cir.    2005)        (Posner,     J.).     However,

circumstances may make a major variance reasonable.

                 Here,    the    district       court     relied     on    six    factors    to

distinguish this case: Smith's youth; his involvement in the

offense "for a limited period of time"; the fact that Smith did not

"appear to have been a leader"; the fact that Smith "appear[ed] to

have committed the crime to support [his] drug habit"; Smith's

participation            in     drug    abuse       treatment       and    his    subsequent

employment; and the probation officer's suggestion that a "sentence

substantially below the guidelines is appropriate."3

                 The government first argues that the district court

committed legal error because some of the factors relied upon--such

as age, drug use, lack of a leadership role, and post-offense

rehabilitation--are "either discouraged or prohibited bases for

departure" under the sentencing guidelines and circuit precedent.

Legal errors are reviewed de novo and are themselves a basis for




       3
      The district judge also told Smith that he was "imposing the
same sentence on you as I have imposed on the two defendants in
this case who have appeared before me already."        One of the
defendants was sentenced to 46 months of imprisonment, while the
other was sentenced to 57 months of imprisonment.

                                                -7-
remand, Pho, 433 F.3d at 60-61, unless the error had no effect upon

the sentence.

             For    the    most   part,    the   Commission's     decision    to

discourage or exclude a factor seemingly rested either on a doubt

whether the factor had much relevance to the statutory goals of

sentencing or a concern that the factor was of a kind that tended

to promote the inequality in sentencing that the guidelines aimed

to reduce.     U.S.S.G. § 5H1.1, intro. cmt. (2005); cf. id. § 5K2.0,

cmt. (backg'd).           But, as we explained in Jiménez-Beltre, the

guidelines are generalizations; the benefit of advisory guidelines

is the room allowed for finer tuning.            2006 WL 562154, at *3.

             That a factor is discouraged or forbidden under the

guidelines does not automatically make it irrelevant when a court

is weighing the statutory factors apart from the guidelines.                 The

guidelines--being advisory--are no longer decisive as to factors

any more than as to results.          About the best one can say for the

government's argument is that reliance on a discounted or excluded

factor may, like the extent of the variance, have some bearing on

reasonableness.

             The government also argues that the district court erred

in   relying   on    the    pre-sentence    recommendation   of    a   sentence

substantially below the guidelines range, contending that this

factor is "irrelevant" under section 3553(a).           However, nothing in

the statute forbids taking the probation officer's recommendation


                                      -8-
into account.       A sentencing judge could reasonably consider the

informed opinion of the officer in evaluating the section 3553(a)

factors, see United States v. Robinson, 433 F.3d 31, 36 (1st Cir.

2005), although the weight accorded such an evaluation surely

depends on the strength of the reasons given.

            The government next argues that the district court erred

in    (allegedly)        basing     Smith's      sentence      on   those    of   his

co-defendants.      The government says that this misconstrues section

3553(a)(6),      which    requires     district     courts     to   avoid   creating

"unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct."                           The

government argues that the "disparity" referenced in the statutory

language refers only to variations from a national norm.

            We    agree    that     Congress'      goal   of   equality     primarily

envisions a national norm; the guidelines were in some measure a

response to disparities among sentences for like individuals in

different parts of the country.             United States v. Wogan, 938 F.2d

1446, 1449 (1st Cir. 1991), cert. denied, 502 U.S. 969 (1991).                     In

any event, the district judge in this case was apparently stressing

his   own   consistency           rather    than    supplying       an   independent

justification of the 46 month sentence.

            Having rejected the government's legal-error arguments,

we turn now to its claim that the sentence was unreasonably low.

In doing so, we do not think that the district court made any clear


                                           -9-
error as to underlying fact warranting a remand.                Robinson, 433

F.3d at 38 (sentence may be vacated if "predicated on a clearly

erroneous view of material facts").4         The issue, rather, is one of

reasonableness: the plausibility of both the explanation and the

result.   Jiménez-Beltre, 2006 WL 562154, at *4.

           The first fact relied on by the district court--Smith's

youth--is a discouraged factor, but one that has a conventional

appeal; among the concerns are that the crime may be a youthful

aberration and that a young man may have a greater chance for

rehabilitation.     The district judge did not rely upon aberration--

Smith, after all, had participated in six crack transactions and

had a substantial criminal history continuing over several years--

but the judge did express a hope of rehabilitation.

           Yet     Smith's     criminal   career   has    progressed    fairly

steadily toward more serious crimes (from license plate theft and

marijuana possession, for example, to crack distribution near a

school and playground).        He served time in prison after violating

the   conditions    of   his   probation    stemming     from   his   marijuana

possession conviction, and it was soon after his release from that



      4
      The government says that the evidence did not support the
district court's statements about drugs as a cause of Smith's
crimes or his rehabilitation. A close reading indicates that the
statements were quite qualified--that Smith "appear[ed]" to have
engaged in his crimes in order to support a drug habit, and, in
treatment, "received positive reports," though he "had a couple of
slips." The former statement, so qualified, has some basis in the
PSR; the latter is a matter of characterization.

                                     -10-
period of incarceration that he was arrested for the crime in

question here.

          The district judge also relied upon Smith's involvement

in the present offenses "for a limited period of time."          But Smith

already had a significant criminal history; his first conviction

(not necessarily his first crime) occurred more than three years

before his crack transactions, which means that he was engaged in

offenses from the age of 18 through the age of 21.           During this

period, he accumulated nine criminal history points, so his present

offenses appear a further extension of his criminal history.

          Further, the court said that Smith did not "appear to

have been a leader," and this is true even though Smith progressed

in the six transactions from aiding others to making his own sales.

But the guideline calculations already account for this fact.

U.S.S.G. § 3B1.1 (2005).    If there is some more specific aspect of

his role that mitigates over and above the usual guideline sentence

for an ordinary participant, which in principle could be true, it

is not stated.

          Finally,   the   district    judge   mentioned   the   potential

contribution of drug addiction.       The probation officer apparently

said that the defendant "appear[ed] to have committed" the crimes

to support a drug habit.        At sentencing, the district judge

essentially echoed the probation officer's qualified statement

about the role of Smith's drug problems in his crimes.                 The


                                 -11-
government argues that this finding was without basis, and the

defendant does not point to any specific facts on the record that

support such a conclusion.

              In any case, we note that Smith, as soon as he had

completed his first phase of rehabilitation, immediately began to

break   the    rules      of   the    sober       house,       which     resulted    in   the

termination of his release. Regardless of the extent to which drug

dependence may have played a role in his crimes, this relapse into

misbehavior almost as soon as controls lessened does not speak well

for his prospects of future self-control, whatever the cause for

the relapse may have been.

              We    are   hard-put        to    see    any     basis    for    finding    this

sentence reasonable.           This is equally true if one turns from the

facts   relied       upon      by    the       district        judge     to    the   general

considerations        provided       by    the    statute.             Both    vantages    are

pertinent in assessing reasonableness, and other circuits that have

reviewed sentences for reasonableness have been willing to look at

the matter from either end of the telescope.                            See, e.g., United

States v. Lazenby, --- F.3d ---, 2006 WL 569284, at *4-*5 (8th Cir.

Mar. 10, 2006); United States v. Duhon, --- F.3d ---, 2006 WL

367017, at *3-*8 (5th Cir. Feb. 17, 2006); United States v.

Moreland, 437 F.3d 424, 436-37 (4th Cir. 2006).

              The    first     sentencing             factor     is     "the    nature     and

circumstances of the offense and the history and characteristics of


                                               -12-
the defendant."         18 U.S.C. § 3553(a)(1).               Here, the offense

involved repeatedly selling crack near a school and playground, and

the   defendant,      although    young,       has    accumulated    a   significant

criminal history.       Even after some rehabilitation and while this

case was pending, he was unable to conform to the rules of the

sober house to which he was sent.

            Three more factors, grouped together by the statute, are

the seriousness of the offense, need for respect for law, and need

for just punishment.        18 U.S.C. § 3553(a)(2)(A).                Selling crack

near facilities where children gather speaks directly to these

factors.     The offense, and the defendant's developing criminal

career, is also pertinent, again in ways unhelpful to him, to two

other statutory factors: the need "to afford adequate deterrence"

and "to protect the public."               Id. § 3553(a)(2)(B)-(C).

            The statute also refers to the need "to provide the

defendant with needed . . . medical care[] or other correctional

treatment . . . ."       18 U.S.C. § 3553(a)(2)(D).               If drug treatment

is required by Smith, this can presumably be done whether the

sentence    is   46   months     or    a    longer    guideline     sentence.     The

statute's    language     does        not    itself    make   drug    addiction   an

extenuating circumstance, and in any event, as we have seen, there

is no very clear evidence of a causal link between drug abuse and

Smith's crimes in this case.


                                            -13-
           The next pertinent sentencing factor in the statute is

the guideline range itself, 18 U.S.C. § 3553(a)(4)(A), which in

turn is the principal means for complying with the last pertinent

goal, namely, "the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of

similar conduct."    Id. § 3553(a)(6).       The factor in question--the

guideline range--is obviously not one that supports the district

court's   non-guideline     sentence,     and,   to   the    extent   that   the

guidelines are given force, pushes in the other direction.

           In a nutshell, the offense is quite serious and the

defendant's record unpromising, and there are no developed findings

to indicate that rehabilitation is a better prospect than usual.

A sentence less than half the minimum range appears to us plainly

unreasonable.     Although    we    are   unhappy     to   disagree   with   the

respected and experienced district judge in this case, we cannot

sustain the sentence on the findings and explanation before us.5

           The   sentence    is    vacated   and    the    case   remanded   for

resentencing consistent with this decision. Framing a new sentence

after any proceedings deemed appropriate is, in the first instance,

the responsibility of the district judge.

           It is so ordered.


     5
      Compare United States v. Hampton, --- F.3d ---, 2006 WL
724811, at *3-*4 (4th Cir. March 23, 2006); Lazenby, 2006 WL 569284
at *4-*5; Duhon, 2006 WL 367017 at *3-*8; Moreland, 437 F.3d at
436-37; United States v. McMannus, 436 F.3d 871, 875 (8th Cir.
2006).

                                     -14-
