United States v. 2006-04-20 | 05-30045 | USA VPLOUFFE | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 05-30045
Plaintiff-Appellee, D.C. No.
v. CR-04-00013-3-
SEHCHRISTOPHER RAY PLOUFFE,  Defendant-Appellant. ORDER
AMENDING
OPINION AND
AMENDED
OPINION

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted December 9, 2005*
Seattle, Washington
Filed January 18, 2006
Amended April 21, 2006
Before: Ronald M. Gould, Marsha S. Berzon, Circuit Judges,
and William W Schwarzer,** District Judge.
Opinion by Judge Gould
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
4495

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COUNSEL
Jeremy S. Yellin, Havre, Montana, for defendant-appellant
Christopher Ray Plouffe.
Joseph E. Thaggard, Assistant United States Attorney, Great
Falls, Montana, for plaintiff-appellee United States of Amer-
ica.
ORDER
The opinion filed on January 18, 2006, and published at
436 F.3d 1062, is AMENDED as follows.
The first paragraph of the opinion states:
Christopher Ray Plouffe appeals his 71-month sen-
tence imposed after his guilty-plea conviction on one
4497 UNITED STATES v. PLOUFFE

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count of assault resulting in serious bodily harm in
violation of 18 U.S.C. §§ 113(a)(6) and 1153. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.
The following language is added after this first paragraph:
“I
Although neither party raised the issue of our
jurisdiction to consider Plouffe’s sentencing chal-
lenge after United States v. Booker, 543 U.S. 220
(2005), we requested supplemental briefing from the
parties on the issue and now address it sua sponte.
Before Booker was decided, the Ninth Circuit had
held that we do not have jurisdiction to review a
challenge to a sentence if the sentence was within
the Sentencing Guidelines range. See, e.g., United
States v. Reed, 914 F.2d 1288, 1290 (9th Cir. 1990);
United States v. Pelayo-Bautista, 907 F.2d 99, 101
(9th Cir. 1990). Ordinarily, panels cannot overrule a
circuit precedent; that power is reserved to the circuit
court sitting en banc. See, e.g., United States v.
Hayes, 231 F.3d 1132, 1139-40 (9th Cir. 2000);
United States v. Washington, 872 F.2d 874, 880 (9th
Cir. 1989). As an exception to this general rule, we
have held that where an intervening higher authority
has issued an opinion that is “clearly irreconcilable”
with our prior circuit precedent, a panel is free to act
disregarding that precedent. See Miller v. Gammie,
335 F.3d 889, 893, 900 (9th Cir. 2003) (en banc).
Here, the clear and unambiguous language of the
Supreme Court in Booker has established that district
courts must now view the Guidelines as advisory,
and sentence with discretion to go outside the Guide-
lines range, while considering the purposes of sen-
tencing under 18 U.S.C. § 3553(a). Booker, 543 U.S.
4498 UNITED STATES v. PLOUFFE

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at 245-46 (holding that after excising 18 U.S.C.
§§ 3553(b)(1) and 3742(e), the Federal Sentencing
Act “requires a sentencing court to consider Guide-
lines ranges, but it permits the court to tailor the sen-
tence in light of other statutory concerns as well”
(internal citation omitted)). Booker also states that
“the Act continues to provide for appeals from sen-
tencing decisions (irrespective of whether the trial
judge sentences within or outside the Guidelines
range in the exercise of his discretionary power
under § 3553(a)).” Id. at 260 (emphasis added) (cit-
ing 18 U.S.C. § 3742(a)-(b)).
The Supreme Court’s holding and reasoning in
Booker is “clearly irreconcilable” with our prior line
of precedent that disclaimed jurisdiction over a chal-
lenge to a sentence within the Guidelines range. Our
prior precedent restricting jurisdiction made sense
when the Guidelines were considered mandatory,
with only a limited scope of permissible departure.
See Koon v. United States, 518 U.S. 81 (1996). How-
ever, it would not make sense to so restrict jurisdic-
tion on appeal now that the Guidelines must be
viewed, per the Supreme Court’s Booker holding, as
merely advisory, with sentencing courts exercising
discretion within and beyond Guidelines ranges,
guided by the statutory purposes of sentencing. See
Booker, 543 U.S. at 245-46, 264-65; 18 U.S.C.
§ 3553(a). Stated another way, Booker requires that
appellate courts review the reasonableness of all sen-
tences, which is informed by the Guidelines calcula-
tion as well as by the other factors set forth in
§ 3553(a). If our review were eliminated for sen-
tences within the Guidelines range, there would be
no review of the other factors for such sentences, and
we would thus contravene Booker’s mandate regard-
ing appellate review.
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Our conclusion that we have jurisdiction to con-
sider appeals of sentences within the Guidelines
range is supported by 18 U.S.C. § 3742(a)(1), which
provides that a defendant may appeal a sentence if
the sentence “was imposed in violation of law.”
Booker does not establish that a sentence within the
Guidelines range is per se reasonable, and therefore
lawful. Rather, the reasonableness of a sentence is
informed by all of the § 3553(a) factors, including
the Guidelines range. See Booker, 543 U.S. at 245-
46, 264-65. A sentence that is within the Guidelines
range therefore may be unreasonable and thus
imposed in violation of law pursuant to § 3742(a)(1).
This conclusion is in accord with our sister circuits.
See United States v. Fernandez, ___ F.3d ___, No.
05-1596, 2006 WL 851670, at *5 (2d Cir. Apr. 3,
2006) (holding that the court has authority to review
Guidelines sentences for reasonableness pursuant to
§ 3742(a)(1)); United States v. Cooper, 437 F.3d
324, 327-28 (3d Cir. 2006) (“We believe an unrea-
sonable sentence is ‘imposed in violation of law’
under 18 U.S.C. § 3742(a)(1).”), amended by ___
F.3d ___, No. 05-1447, 2006 WL 851781 (3d Cir.
Apr. 4, 2006); United States v. Mickelson, 433 F.3d
1050, 1056 (8th Cir. 2006) (stating that, in light of
Booker, appellate review of within-Guidelines sen-
tences “fits within what Congress would have
intended” in § 3742(a) (internal quotation marks
omitted)); United States v. Frokjer, 415 F.3d 865,
875 n.3 (8th Cir. 2005) (“After Booker, . . . we will
review a defendant’s argument that even a sentence
within the advisory guideline range is ‘unreasonable’
with regard to the factors set forth in 18 U.S.C.
§ 3553(a), and an unreasonable sentence would be
imposed ‘in violation of law’ within the meaning of
§ 3742(a).” (internal citation omitted)); United States
v. Martinez, 434 F.3d 1318, 1322 (11th Cir. 2006)
(per curiam) (“[A] post-Booker appeal based on the
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‘unreasonableness’ of a sentence, whether within or
outside the advisory guidelines range, is an appeal
asserting that the sentence was imposed in violation
of law pursuant to § 3742(a)(1).”); see also United
States v. Jiménez-Beltre, 440 F.3d 514, 517 (1st Cir.
2006) (en banc) (“A majority of Justices said explic-
itly in Booker that sentences would be reviewable for
reasonableness whether they fell within or without
the guidelines, and for us that is the end of the mat-
ter.” (footnote omitted)).1
Accordingly, we hold that we need not follow the
prior precedents that constrained our jurisdiction to
review an appeal of a sentence in the Guidelines
range because these precedents have been effectively
overruled by the intervening and higher authority of
the United States Supreme Court in Booker, and so
we are free to disregard the now superseded prece-
dents. Miller, 335 F.3d at 893, 900.
II”
No subsequent petitions for rehearing or for rehearing en
banc may be filed by the parties.
IT IS SO ORDERED.
1At the time the parties filed their supplemental letter briefs, the deci-
sions cited above of the First, Third, Eighth, and Eleventh Circuits had
been rendered. The government in its letter brief failed to bring to our
attention this relevant extra-circuit authority, interpreting the issue of juris-
diction after Booker to review within-Guidelines sentences. When we seek
supplemental briefing on a novel issue involving interpretation of a
Supreme Court precedent, on which our circuit has not ruled, we expect
the parties, including the government, to bring to our attention all relevant
extra-circuit precedent.
4501 UNITED STATES v. PLOUFFE

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OPINION
GOULD, Circuit Judge:
Christopher Ray Plouffe appeals his 71-month sentence
imposed after his guilty-plea conviction on one count of
assault resulting in serious bodily harm in violation of 18
U.S.C. §§ 113 (a)(6) and 1153. We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm.
I
Although neither party raised the issue of our jurisdiction
to consider Plouffe’s sentencing challenge after United States
v. Booker, 543 U.S. 220 (2005), we requested supplemental
briefing from the parties on the issue and now address it sua
sponte. Before Booker was decided, the Ninth Circuit had
held that we do not have jurisdiction to review a challenge to
a sentence if the sentence was within the Sentencing Guide-
lines range. See, e.g., United States v. Reed, 914 F.2d 1288,
1290 (9th Cir. 1990); United States v. Pelayo-Bautista, 907
F.2d 99, 101 (9th Cir. 1990). Ordinarily, panels cannot over-
rule a circuit precedent; that power is reserved to the circuit
court sitting en banc. See, e.g., United States v. Hayes, 231
F.3d 1132, 1139-40 (9th Cir. 2000); United States v. Wash-
ington, 872 F.2d 874, 880 (9th Cir. 1989). As an exception to
this general rule, we have held that where an intervening
higher authority has issued an opinion that is “clearly irrecon-
cilable” with our prior circuit precedent, a panel is free to act
disregarding that precedent. See Miller v. Gammie, 335 F.3d
889, 893, 900 (9th Cir. 2003) (en banc).
Here, the clear and unambiguous language of the Supreme
Court in Booker has established that district courts must now
view the Guidelines as advisory, and sentence with discretion
to go outside the Guidelines range, while considering the pur-
poses of sentencing under 18 U.S.C. § 3553(a). Booker, 543
U.S. at 245-46 (holding that after excising 18 U.S.C.
4502 UNITED STATES v. PLOUFFE

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§§ 3553(b)(1) and 3742(e), the Federal Sentencing Act “re-
quires a sentencing court to consider Guidelines ranges, but
it permits the court to tailor the sentence in light of other stat-
utory concerns as well” (internal citation omitted)). Booker
also states that “the Act continues to provide for appeals from
sentencing decisions (irrespective of whether the trial judge
sentences within or outside the Guidelines range in the exer-
cise of his discretionary power under § 3553(a)).” Id. at 260
(emphasis added) (citing 18 U.S.C. § 3742(a)-(b)).
The Supreme Court’s holding and reasoning in Booker is
“clearly irreconcilable” with our prior line of precedent that
disclaimed jurisdiction over a challenge to a sentence within
the Guidelines range. Our prior precedent restricting jurisdic-
tion made sense when the Guidelines were considered manda-
tory, with only a limited scope of permissible departure. See
Koon v. United States, 518 U.S. 81 (1996). However, it would
not make sense to so restrict jurisdiction on appeal now that
the Guidelines must be viewed, per the Supreme Court’s
Booker holding, as merely advisory, with sentencing courts
exercising discretion within and beyond Guidelines ranges,
guided by the statutory purposes of sentencing. See Booker,
543 U.S. at 245-46, 264-65; 18 U.S.C. § 3553(a). Stated
another way, Booker requires that appellate courts review the
reasonableness of all sentences, which is informed by the
Guidelines calculation as well as by the other factors set forth
in § 3553(a). If our review were eliminated for sentences
within the Guidelines range, there would be no review of the
other factors for such sentences, and we would thus contra-
vene Booker’s mandate regarding appellate review.
Our conclusion that we have jurisdiction to consider
appeals of sentences within the Guidelines range is supported
by 18 U.S.C. § 3742(a)(1), which provides that a defendant
may appeal a sentence if the sentence “was imposed in viola-
tion of law.” Booker does not establish that a sentence within
the Guidelines range is per se reasonable, and therefore law-
ful. Rather, the reasonableness of a sentence is informed by
4503 UNITED STATES v. PLOUFFE

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all of the § 3553(a) factors, including the Guidelines range.
See Booker, 543 U.S. at 245-46, 264-65. A sentence that is
within the Guidelines range therefore may be unreasonable
and thus imposed in violation of law pursuant to § 3742(a)(1).
This conclusion is in accord with our sister circuits. See
United States v. Fernandez, ___ F.3d ___, No. 05-1596, 2006
WL 851670, at *5 (2d Cir. Apr. 3, 2006) (holding that the
court has authority to review Guidelines sentences for reason-
ableness pursuant to § 3742(a)(1)); United States v. Cooper,
437 F.3d 324, 327-28 (3d Cir. 2006) (“We believe an unrea-
sonable sentence is ‘imposed in violation of law’ under 18
U.S.C. § 3742(a)(1).”), amended by ___ F.3d ___, No. 05-
1447, 2006 WL 851781 (3d Cir. Apr. 4, 2006); United States
v. Mickelson, 433 F.3d 1050, 1056 (8th Cir. 2006) (stating
that, in light of Booker, appellate review of within-Guidelines
sentences “fits within what Congress would have intended” in
§ 3742(a) (internal quotation marks omitted)); United States
v. Frokjer, 415 F.3d 865, 875 n.3 (8th Cir. 2005) (“After
Booker, . . . we will review a defendant’s argument that even
a sentence within the advisory guideline range is ‘unreason-
able’ with regard to the factors set forth in 18 U.S.C.
§ 3553(a), and an unreasonable sentence would be imposed
‘in violation of law’ within the meaning of § 3742(a).” (inter-
nal citation omitted)); United States v. Martinez, 434 F.3d
1318, 1322 (11th Cir. 2006) (per curiam) (“[A] post-Booker
appeal based on the ‘unreasonableness’ of a sentence, whether
within or outside the advisory guidelines range, is an appeal
asserting that the sentence was imposed in violation of law
pursuant to § 3742(a)(1).”); see also United States v. Jiménez-
Beltre, 440 F.3d 514, 517 (1st Cir. 2006) (en banc) (“A
majority of Justices said explicitly in Booker that sentences
would be reviewable for reasonableness whether they fell
within or without the guidelines, and for us that is the end of
the matter.” (footnote omitted)).1
1At the time the parties filed their supplemental letter briefs, the deci-
sions cited above of the First, Third, Eighth, and Eleventh Circuits had
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[1] Accordingly, we hold that we need not follow the prior
precedents that constrained our jurisdiction to review an
appeal of a sentence in the Guidelines range because these
precedents have been effectively overruled by the intervening
and higher authority of the United States Supreme Court in
Booker, and so we are free to disregard the now superseded
precedents. Miller, 335 F.3d at 893, 900.
II
[2] We review sentences imposed after the Supreme
Court’s decision in United States v. Booker for “unreason-
ableness.” 125 S. Ct. 738, 765-66 (2005). In determining
whether a sentence is unreasonable, we are guided by the sen-
tencing factors set forth in 18 U.S.C. § 3553(a), including the
sentencing range established by the Sentencing Guidelines.2
Id.
[3] The district court considered Plouffe’s history and char-
acteristics, which were described in the presentence report;
Plouffe’s role in the offense; the need to protect the public
while providing appropriate punishment for the offense; and
been rendered. The government in its letter brief failed to bring to our
attention this relevant extra-circuit authority, interpreting the issue of juris-
diction after Booker to review within-Guidelines sentences. When we seek
supplemental briefing on a novel issue involving interpretation of a
Supreme Court precedent, on which our circuit has not ruled, we expect
the parties, including the government, to bring to our attention all relevant
extra-circuit precedent.
2These factors include: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need for the
sentence imposed; (3) the kinds of sentences available; (4) the kinds of
sentences and the sentencing range established by the Sentencing Guide-
lines; (5) pertinent policy statements issued by the Sentencing Commis-
sion; (6) the need to avoid unwarranted sentencing disparities among
defendants who have similar criminal records and have been found guilty
of similar conduct; and (7) the need to provide restitution to victims. 18
U.S.C. § 3553(a).
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the now-advisory Sentencing Guidelines range of 57-71
months. The court then imposed a sentence that was within
the guideline range, albeit at the top of the range. The district
court’s approach was reasoned and it addressed factors speci-
fied in § 3553(a). We conclude that Plouffe’s 71-month sen-
tence is reasonable, and we will not disturb the discretion of
the sentencing court.
[4] That Plouffe’s sentence is nearly twice as long as the
37-month sentence imposed on his co-defendant, Mad Plume,
is not grounds for finding that Plouffe’s sentence is unreason-
able, as urged by Plouffe. Rather, this result is consistent with
the directive of Booker that sentencing courts are to consider
how the sentencing factors apply to each defendant and deter-
mine whether an individualized sentence is warranted. Id. at
767 (noting that, without its mandatory provision, the Sen-
tencing Reform Act remains consistent with Congress’s intent
to “provide certainty and fairness in meeting the purposes of
sentencing, [while] avoiding unwarranted sentencing dispari-
ties . . . [and] maintaining sufficient flexibility to permit indi-
vidualized sentences when warranted.”) (emphasis added)
(alteration in original) (internal quotation marks omitted).
Because Plouffe’s criminal history was different from that of
his co-defendant, the district court had a reasonable basis
under the advisory Sentencing Guidelines for the difference in
the sentence each received, and this difference does not
require relief for Plouffe.
AFFIRMED.
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