United States v. 2006-04-17 | 05-10033 | USA VMIQBEL | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 05-10033
Plaintiff-Appellee, D.C. No.
v.  CR-00-00377-WBS
JAWAD MIQBEL, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Chief Judge, Presiding
Argued and Submitted
October 17, 2005—San Francisco, California
Filed April 17, 2006
Before: Stephen Reinhardt and Sidney R. Thomas,
Circuit Judges, and Jane A. Restani,* Chief Judge,
United States Court of International Trade.
Opinion by Judge Reinhardt
*The Honorable Jane A. Restani, Judge, United States Court of Interna-
tional Trade, sitting by designation.
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COUNSEL
Quin Denvir, Federal Public Defender; Timothy Zindel,
Assistant Federal Public Defender (argued), Sacramento, Cal-
ifornia, for the defendant-appellant.
McGregor W. Scott, United States Attorney; Samantha S.
Spangler, Assistant U.S. Attorney (argued), Sacramento, Cali-
fornia, for the plaintiff-appellee.
OPINION
REINHARDT, Circuit Judge:
Jawad Miqbel appeals the sentence imposed by the district
court on the grounds that the court failed to set forth sufficient
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reasons for its imposition of a sentence outside the recom-
mended range, in violation of 18 U.S.C. § 3553(c), and that
the sentence was unreasonable because it was imposed to pro-
vide “just punishment,” a factor he alleges to be impermissi-
ble in revocation sentencing. We vacate the sentence and
remand for resentencing.
I.
On February 21, 2001, Jawad Miqbel pled guilty to a
charge of conspiracy to possess a listed chemical with knowl-
edge and reasonable cause to believe it would be used to man-
ufacture methamphetamine in violation of 21 U.S.C. § 846
and § 841(d)(2). On September 5, 2001, Chief Judge William
Shubb of the United States District Court for the Eastern Dis-
trict of California sentenced him to three years imprisonment
and three years of supervised release in addition to requiring
mandatory drug testing. Miqbel served his prison sentence
and was released under the supervision of the court on March
18, 2003.
Following his release, Miqbel used methamphetamine spo-
radically in violation of the conditions of his release. On Sep-
tember 3, 2003, he admitted to his probation officer that he
had used methamphetamine on or around August 31, 2003.
On October 27, 2003, he tested positive for amphetamine and
methamphetamine. On May 3, 2004, Lodi Police initiated a
traffic stop on a vehicle driven by Miqbel and during a subse-
quent search, conducted with his consent, found 7.1 grams of
marijuana and 1.3 grams of methamphetamine in the car. He
was released the following day and immediately reported the
arrest to his probation officer. Based on these incidents, the
probation officer filed a petition with the court on June 1,
2004 alleging that Miqbel had violated the conditions of his
release. In the petition, the probation officer noted that Miqbel
had “been in high frequency substance abuse testing and
group and individual counseling” since late 2003 and that
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since he had started that treatment, “[a]ll indications were that
he was doing well.”
Appearing before the district court at the revocation hearing
on December 22, 2004, Miqbel was found in violation of one
charge, use of methamphetamine, a Grade C violation under
the federal Sentencing Guidelines. For a Grade C violation,
the Chapter 7 policy statements recommend a range of impris-
onment of three to nine months for those who, like Miqbel,
have a Category I criminal history. U.S. SENTENCING GUIDE-
LINES MANUAL § 7B1.4 (2004) (Term of Imprisonment (Policy
Statement)).1 At the revocation hearing, however, the district
court sentenced Miqbel outside of the recommended three- to
nine-month range, to a term of twelve months of imprison-
ment, despite the recommendations of the probation officer
and the government that he receive a six month sentence.2 The
only reason provided by the court for the upward departure
was: “I have considered the guidelines under Chapter 7, and
I have carefully given consideration to a sentence within those
guidelines, but I find that a sentence within those guidelines
would be insufficient to meet the purposes of sentencing
under these circumstances.”
On May 25, 2005, the district court heard and denied Miq-
bel’s motion for bail pending appeal. At this hearing, the court
acknowledged that it “could have and probably should have
been more explicit in the reasons given for the sentence” that
it had imposed at the earlier revocation proceeding, and sug-
1The Sentencing Commission has historically issued only “ ‘advisory
policy statements’ applicable to revocations of probation and supervised
release instead of mandatory guidelines.” United States v. Musa, 220 F.3d
1096, 1101 (9th Cir. 2000). Now, of course, all sentencing guidelines and
policy statements are advisory, not mandatory. See United States v.
Booker, 543 U.S. 220, 259 (2005).
2We have held that the district court is not bound by the recommenda-
tion of the parties in sentencing, so the court did not err by virtue of its
refusal to follow the recommendations. See United States v. Hurt, 345
F.3d 1033, 1036 (9th Cir. 2003).
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gested that Miqbel’s counsel raise on appeal the issue whether
a court can consider punishment as a factor in deciding what
sentence to impose upon revocation of supervised release. In
the course of the bail hearing, the court stated that in its view,
“punishment is the sentence imposed in order to promote
respect for the law and to provide just punishment for the
offense”3 and stated its belief that punishment could be taken
into account in revocation sentencing.
Miqbel appeals his sentence.4 This court has jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
II.
Whether the district court provided an adequate statement
3At the sentencing and bail hearings, there was some discussion of
behavior that in two respects might indicate Miqbel’s potential for danger
to the community, a § 3553(a)(2) factor that may properly be considered
in terminating a term of supervised release (see § 3583(e)). First, the gov-
ernment noted an alleged domestic dispute between Miqbel and his girl-
friend. (When this was raised, Miqbel’s counsel stated that the girlfriend,
who was present at sentencing, now “sa[id] he didn’t strike her” and that
the report was false.) Second, the government cited the possibility that
Miqbel drove a delivery truck at work while using drugs. (Miqbel’s coun-
sel pointed out at the bail hearing that this was mere supposition and that
there was no evidence “that Mr. Miqbel ever drove a motor vehicle while
under the influence.”) The government also provided information as to
Miqbel’s history of pretrial and supervised release violations. However,
when sentencing Miqbel, the district court did not refer specifically to any
of these factors, nor did it appear to rely on any of them as a basis for the
sentence imposed. Furthermore, the court’s questions at the subsequent
bail hearing (“What about the law on danger to the community? What’s
the definition of danger to the community?”) and the ensuing discussion
make it evident that it had not previously engaged in any substantive con-
sideration of such factors and did not rely on such factors when imposing
the sentence.
4Miqbel’s original expected release date was December 18, 2005. How-
ever, on October 19, 2005, we granted the request for bail pending resolu-
tion of this appeal and ordered Miqbel’s release, remanding to the district
court only for the purpose of determining the conditions of release.
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of reasons for the sentence it imposed is a question of law that
we review de novo. United States v. Duran, 37 F.3d 557, 560
(9th Cir. 1994) (citing United States v. Upshaw, 918 F.2d 789,
792 (9th Cir. 1990), cert. denied, 499 U.S. 930 (1991)). If a
defendant fails to object to the district court’s failure to ade-
quately state reasons, however, the sentence is reviewed for
plain error. See United States v. Vences, 169 F.3d 611, 613
(9th Cir. 1999).
We have historically reviewed the district court’s consider-
ation of non-binding policy statements, such as Chapter 7, for
abuse of discretion. United States v. Tadeo, 222 F.3d 623, 625
(9th Cir. 2000); United States v. George, 184 F.3d 1119, 1120
(9th Cir. 1999). We review the sentence ultimately imposed
for reasonableness. United States v. Booker, 543 U.S. 220,
261-62 (2005).5
5According to § 3742, a sentence “imposed for an offense for which
there is no sentencing guideline” — i.e., for which there is only a policy
statement — will be reversed only if it is “plainly unreasonable.” 18
U.S.C. § 3742(a)(4) & (f)(2). After Booker, however, it appears that the
applicable standard is “reasonableness.” See id. at 261; see also United
States v. Davis, 428 F.3d 802, 808 (9th Cir. 2005) (as amended) (holding
that, after Booker, “appellate courts should review sentences for ‘unrea-
sonableness’ ”). At least two other circuits have held that Booker’s exci-
sion of § 3742(e) and its establishment of a “reasonableness” standard “is
fairly understood as requiring that its announced standard of reasonable-
ness now be applied not only to review of sentences for which there are
guidelines but also to review of sentences for which there are no applica-
ble guidelines.” United States v. Fleming, 397 F.3d 95, 99 (2d Cir. 2005)
(reviewing a sentence on revocation of supervised release for reasonable-
ness); see also United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005)
(same); United States v. Edwards, 400 F.3d 591, 592-93 (8th Cir. 2005)
(same); but see United States v. Johnson, 403 F.3d 813, 816-17 (6th Cir.
2005) (declining to decide whether to apply a “reasonableness” or a
“plainly unreasonable” standard). We join the Second and Eighth Circuits
in concluding that Booker’s “reasonableness” standard has displaced the
former “plainly unreasonable” standard in the context of revocation sen-
tencing.
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III.
[1] On appeal, Miqbel argues, first, that the trial court erred
by failing to explain adequately the reasons for his sentence,
as required by 18 U.S.C. § 3553(c).6 Section 3553(c) requires
the court:
at the time of sentencing, [to] state in open court the
reasons for its imposition of the particular sentence,
and, if the sentence —
(1) is of the kind, and within the range, described
in subsection (a)(4), and that range exceeds 24
months, the reason for imposing a sentence within a
particular point within the range; or
(2) is not of the kind, or is outside the range,
described in subsection (a)(4), the specific reason for
the imposition of a sentence different from that
described, which reasons must be stated with speci-
ficity in the written order of judgment and commit-
ment . . . .
18 U.S.C. § 3553(c) (emphasis added). The requirement
applies to sentences imposed following consideration of the
Sentencing Commission’s policy statements, as well as those
imposed following consideration of the guidelines’ previously
mandatory provisions.7 For an offense like Miqbel’s, classi-
6Although after Booker, the sentencing guidelines are no longer manda-
tory, the requirements of § 3553(c) remain applicable. See United States
v. Fifield, 432 F.3d 1056, 1063-66 (9th Cir. 2005) (applying the § 3553(c)
requirement post-Booker); see also Booker, 543 U.S. at 259, 266 (holding
that after the excision of 18 U.S.C. § 3553(b)(1) and § 3742(e), “[t]he
remainder of the [Federal Sentencing] Act ‘function[s] independently’ ”
and “remain[s] intact” (citation omitted) (second alteration in original)).
7Subsection (a)(4), referred to in § 3553(c), includes “the applicable
guidelines or policy statements issued by the Sentencing Commission pur-
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fied as Grade C and involving an offender with a Category I
criminal history, the recommended range for sentencing under
the Chapter 7 policy statements is three to nine months. U.S.
SENTENCING GUIDELINES MANUAL § 7B1.4 (2004). The district
court, however, imposed what would appear to be an out-of-
range sentence of twelve months.
The government argues that according to United States v.
Lockard, 910 F.2d 542 (9th Cir. 1990), there is “no ‘range’
for revocation of a term of supervised release and imposition
of the term of that sentence.” Id. at 545. Therefore, the gov-
ernment contends, the court “need not comply with section
3553(c)(2) when sentencing for a supervised release violation,
but need only set forth its general reasons for a sentence pur-
suant to the prefatory language of section 3553(c).” The gov-
ernment overlooks, however, the fact that Lockard was
decided in 1990, four years before an amendment to
§ 3553(a)(4)(B) added the phrase “policy statements.” See
§ 3553(a)(4)(B) (“[I]n the case of a violation of probation or
supervised release, [the court shall consider] the applicable
guidelines or policy statements issued by the Sentencing
Commission pursuant to [28 U.S.C. § 994(a)(3)].” (emphasis
added)); see also George, 184 F.3d at 1120 (explaining the
effect of the 1994 amendments). Because § 7B1.4, which is a
policy statement prescribing sentencing ranges for defendants
in Miqbel’s position, was not made applicable to § 3553 until
the 1994 amendment was adopted, it could not have been
applied to Lockard.
[2] Miqbel’s supervised release sentencing clearly falls
within § 3553(c)(2). Because § 3553(a)(4), as amended,
suant to [28 U.S.C. § 994(a)(3)].” 18 U.S.C. § 3553(a)(4)(B). Section
994(a)(3) covers “guidelines or general policy statements regarding the
appropriate use of the provisions for revocation of probation set forth in
[18 U.S.C. § 3565], and the provisions for modification of the term or con-
ditions of supervised release and revocation of supervised release set forth
in [18 U.S.C. § 3583(e)].” 28 U.S.C. § 994(a)(3).
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includes the ranges of imprisonment applicable upon revoca-
tion of supervised release listed in the § 7B1.4 table, any sen-
tence less than three months or more than nine months is
“outside the range” of sentences described in § 3553(a)(4).
Therefore, when it imposed a sentence that fell outside that
three-to-nine-month range, the district court was required to
provide “the specific reason for the imposition of a sentence
different from that described.” 18 U.S.C. § 3553(c)(2)
(emphasis added).
In United States v. Musa, 220 F.3d 1096 (9th Cir. 2000),
the defendant made a claim similar to Miqbel’s based on the
trial court’s failure to “adequately set forth its reasons for
departing from the recommended guidelines as required by 18
U.S.C. § 3553(c).” Id. at 1101. Because Musa’s sentence
“went outside the policy statement range” — in Musa’s case,
the sentence imposed was the three-year statutory maximum,
instead of the three-to-nine-month range listed in § 7B1.4 —
we held that the district court was required to provide specific
reasons for its departure from the recommended sentencing
range. Id.8
[3] In Miqbel’s case, the only reason the district court pro-
vided at sentencing for imposing an out-of-range twelve-
month sentence was that it found that “a sentence within [the]
guidelines would be insufficient to meet the purposes of sen-
tencing under these circumstances.”9 Although the govern-
8Cited in Musa, United States v. Montenegro-Rojo, 908 F.2d 425 (9th
Cir. 1990), also held that reasons for departure “must be sufficiently spe-
cific to allow this court to conduct a meaningful review.” Id. at 428.
9In contrast, the district court in Musa found that the defendant was a
“danger to the community.” Musa, 220 F.3d at 1101; see § 3553(a)(2)(C)
(“to protect the public from further crimes of the defendant”). This was
held to be a sufficiently specific reason to satisfy § 3553(c)(2). Musa, 220
F.3d at 1101; compare United States v. Vallejo, 69 F.3d 992, 995 (9th Cir.
1995) (holding the court’s statement that “based on all the papers . . . the
sentence will be twelve months” to be an inadequate statement of reasons
under § 3553(c)).
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ment contends that the district court provided the necessary
reasons for its sentence “through its colloquy with counsel,”
that exchange did not in fact provide any “specific reason[s]”
that would have satisfied § 3553(c)(2) for the imposition of a
twelve month sentence.10 Early in the colloquy, the district
court referred generally to Miqbel’s history of violations of
pretrial and supervised release conditions, and asked defense
counsel why it should not sentence Miqbel outside of the
Chapter 7 range. That exchange took place, however, at the
very beginning of the sentencing hearing, before defense
counsel had any opportunity to provide an explanation for
Miqbel’s past or current behavior. At that early point in the
proceeding, the district court clearly had not made a decision
regarding Miqbel’s sentence and was instead simply seeking
information that it believed might assist it in its later formula-
tion of a sentence; at that point, the court could not be under-
stood to be providing reasons for a sentence that it had not yet
decided to impose. In contrast, after both the prosecution and
defense had presented their arguments, the district court
arrived at its decision regarding Miqbel’s sentence and
declared:
I have considered the guidelines under Chapter 7,
and I have carefully given consideration to a sen-
tence within those guidelines, but I find that a sen-
10The government attempts to analogize the colloquy in the instant case
to that in United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999)
(“[W]hile the district court failed to comply with the technical require-
ments of § 3553, the court’s reasons were implicit in the colloquy the
court had conducted with counsel.”). In Vences, however, the court was
not operating within the context of § 3553(c)(2), but instead under
§ 3553(c)(1). Id. at 613. Therefore, unlike in the instant case, the Vences
court was not required to provide specific reasons for its rejection of the
recommended range. Also, in Vences, we engaged in plain error review,
while here we review under the ordinary error standard. Most important,
in Vences we held that we lacked jurisdiction over the appeal and dis-
missed it on that basis. For that reason if no other, the isolated statement
on which the government attempts to rely is of little or no assistance to
it.
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tence within those guidelines would be insufficient
to meet the purposes of sentencing under these cir-
cumstances.
Without further explanations of its reasons, the court sen-
tenced Miqbel to twelve months in prison. At no time during
sentencing did the court tie Miqbel’s prior actions to its deci-
sion to impose a sentence outside of the recommended guide-
lines. Nor did it state that such actions were relevant to any
permissible sentencing factors, such as the need for deterrence
from future criminal conduct or rehabilitation.11
[4] The legislative history behind § 3553(c) makes the dis-
trict court’s duty — and the failure to fulfill that duty in this
case — even more clear. The Senate Report explicitly differ-
entiates between the requirements for sentences that are inside
the guideline range and sentences that are outside that range:
Subsection (c) contains a . . . requirement that the
court give the reasons for the imposition of the sen-
tence at the time of sentencing. It also requires, if the
sentence is within the guidelines, the court to give its
reasons for imposing a sentence at a particular point
within the range. Further, if the sentence is not
within the sentencing guidelines, the court must state
the specific reason for imposing [a] sentence that
differs from the guidelines.
Lockard, 910 F.3d at 545 (quoting S. Rep. No. 225, 98th
Cong., 2d Sess. 79 (1984), reprinted in 1984 Code Cong. &
Admin. News 3182, 3262 (emphasis added)) (internal quota-
11Although the Assistant United States Attorney present at sentencing
provided background on Miqbel’s history, she still recommended a sen-
tence of only six months. Therefore, it is unclear from the record on sen-
tencing on what basis the court justified its decision to impose a twelve-
month sentence. As to that inquiry, we have only the very cursory expla-
nation offered by the court that “not all [defendants] have done what [Miq-
bel has] done” and that the guidelines under Chapter 7 were “insufficient.”
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tion marks and footnote omitted). The Report makes clear that
in departing from the recommended sentencing range, the
court must state the specific reason for imposing a sentence
that differs from the recommended range. Therefore, in
imposing a twelve-month sentence on Miqbel, the district
court was required to give the specific reasons why a three-to-
nine month sentence would not be sufficient and why a
twelve-month sentence was appropriate.
[5] The government also argues that the district court
explained its reasoning for Miqbel’s sentence more explicitly
at the subsequent bail hearing, held in May 2005. Aside from
Miqbel’s claim that the basis articulated at that hearing was
“unreasonable,” in that the district court relied primarily on
punishment — a factor he alleges is not appropriate for con-
sideration in the context of revocation sentencing, see infra
Part IV — the dispositive issue is that the purported specific
explanation was given at the bail hearing, and not at the revo-
cation sentencing hearing. Section 3553(c) clearly requires the
court to state its reasons “at the time of sentencing.” 18 U.S.C.
§ 3553(c) (emphasis added). Therefore, post hoc reasons pro-
vided at a later proceeding cannot be used to satisfy the
§ 3553(c) requirement.
This case well illustrates the reason for the rule we have
just discussed. Defendants are, except in most unusual cir-
cumstances, present at sentencing hearings. They are, how-
ever, frequently absent from bail hearings, as was Miqbel.
Thus, without such a rule, defendants might not hear directly
from the court the reasons for the length of their confinement.
To the extent that the bail hearing is useful in our analysis, it
is only because the district judge himself admitted at that
hearing that he “could have and probably should have been
more explicit [at sentencing] in the reasons given for the sen-
tence [he] imposed” and that he relied primarily on punish-
ment and a desire to promote respect for the law in imposing
the sentence.12 Among the various justifications offered at the
12The government argues that the district court also considered Miqbel’s
history of violations, as well as the need for adequate deterrence and pro-
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bail hearing for why he had not been more explicit in his rea-
sons for imposing a twelve-month sentence, the district judge
stated that he did not want to “lecture or talk down” to Miq-
bel, that he was “at the end of his rope” with regard to Miq-
bel, that he misunderstood the applicable law,13 and that he
did not want to have to argue with Miqbel’s counsel about the
reasons for the sentence. The court acknowledged that its col-
loquy with counsel failed to provide an adequate record for
review on appeal, stating: “[i]n hindsight, I now realize that
it’s not the impact that the colloquy has on the defendant at
the time of sentencing that I should have been concerned
about. It was the impact that the colloquy would have had on
the Court of Appeals later on.”14 It also recognized its admit-
tection of the public, at the bail hearing — all permissible factors under
§ 3553(a) — and that the district judge stated at that hearing that he “could
go back and tie Mr. Miqbel’s conduct into each one of those factors.” The
district court did not, however, even at the bail hearing, specifically relate
any of these factors to its decision that a twelve-month sentence would be
sufficient but a three-to-nine month sentence would not.
13The district judge stated at the bail hearing that
[a]t that time, it was my understanding of the law . . . that if the
Court sentenced within the guidelines and the sentencing range
did not exceed 25 months, it was not necessary for the Court to
state the reasons for selecting the sentence that the Court did. . . .
When it came to supervised release, it was my understanding of
the law that . . . as long as the Court made it clear for the record
that it had considered the Chapter 7 guidelines, it was still not
necessary for the Court to state the reasons on the record why it
selected the sentence that it did as long as the sentence was
within the legal range.
14Cf. United States v. McClellan, 164 F.3d 308, 310 (6th Cir. 1999)
(reversing the judgment of the district court and remanding for resentenc-
ing because it was “impossible” to review on appeal whether the sentence
was unreasonable, given the district court’s failure to offer reasons for its
sentencing departure, and concluding that although it can be presumed that
by reviewing the supervised release violation report, a district judge has
considered the recommended sentencing range, “[i]t is not enough to pre-
sume that [the court] also considered the various factors set out in
§ 3553”).
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ted use of “shorthand” in sentencing, stating that it “found
that a sentence within those guidelines would not be sufficient
to meet the purposes of sentencing under the circumstances.
Of course, the purposes of sentencing is a shorthand term for
the factors to be considered in imposing a sentence listed in
Section 3553(a).”15
[6] Although statements made by the court at the bail hear-
ing regarding its perceptions or intentions at the time of the
revocation hearing cannot be taken as providing the reasons
for the sentence it imposed, as required by § 3553(c)(2), these
statements do support our conclusion that the district court
failed to explain the reasons for its departure from the Chapter
7 range with the required level of specificity.16 Because we
conclude that the district court failed to set forth the specific
reasons for imposing a sentence that differs from that recom-
mended by the applicable policy statement, we vacate the sen-
tence imposed and remand for resentencing. See United States
v. Vallejo, 69 F.3d 992, 995 (9th Cir. 1995); United States v.
Wilson, 7 F.3d 828, 839-40 (9th Cir. 1993).
15Here, the court failed to note that the only sentencing factors that may
be considered in sentencing for a violation of supervised release condi-
tions are those provisions in § 3553(a) that are also listed in § 3583(e). See
infra Part IV.
16There is no cause to apply plain error analysis here. Although Miq-
bel’s counsel did not expressly object to the district court’s failure to pro-
vide specific reasons for its departure from the recommended range, his
objections to the court’s sentencing decision were adequate to preserve the
issue. Indeed, the court cut those objections short when counsel sought to
discuss further the factors that the court could consider in imposing the
sentence and challenged the necessity for an out-of-range sentence, given
the application of those factors to the instant case. As the court subse-
quently stated, it did not offer reasons for its sentencing decision in part
because it believed counsel would “come back and argue, argue, argue,
argue again.”
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IV.
Upon resentencing, the district court will be required to
provide an adequate statement of reasons for the sentence
imposed. See Wilson, 7 F.3d at 839-40. In order to avoid fur-
ther errors on remand and to minimize the possibility of addi-
tional appeals, and because the district court has expressly
requested that we clarify the factors that may be considered
in determining the sentence to be imposed upon revocation of
a term of supervised release,17 we will examine briefly the
reasons alluded to by the district court (albeit at the wrong
hearing) for its initial sentencing decision and identify the
applicable statutory factors.
[7] Section 3553(a) provides a list of ten factors to be con-
sidered in imposing a sentence upon conviction of a criminal
offense. 18 U.S.C. § 3553(a). Section 3583(e) incorporates
the majority of the factors listed in § 3553(a) as factors to be
considered in sentencing upon revocation of probation or
supervised release.18 18 U.S.C. § 3583(e). Specifically,
§ 3583(e) incorporates eight of the ten factors listed in
§ 3553(a); to that extent, the provisions are similar.19 Section
17The district court anticipated at the bail hearing that “the Court of
Appeals may well reverse and remand for a more complete articulation,”
and specifically urged the parties to have this court address the punish-
ment question: “You may want to raise this on appeal, because, quite
frankly, I was not aware and, even more frankly, I’m still not aware that
the Court can’t consider punishment in deciding what sentence to impose
on revocation of supervised release.”
18The government’s reliance on Vences is misplaced for the reasons
mentioned in note 10 supra, and because Vences’s sentencing did not
occur within the context of termination of a supervised release, but instead
involved an initial sentencing. See Vences, 169 F.3d at 612. Because the
sentencing in Vences was an initial criminal sentencing, § 3553(a) and not
§ 3583(e) applied.
19Section § 3583(e) states that in the context of revocation, “[t]he court
may, after considering the factors set forth in section 3553(a)(1), (a)(2)B),
(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . . revoke a term of
supervised release [and impose a term of imprisonment].” 18 U.S.C.
§ 3583(e).
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3583(e) specifically omits, however, § 3553(a)(2)(A), which
provides for consideration of “the need for the sentence
imposed to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense.” 18 U.S.C. §§ 3553(a) (emphasis added); 3583(e).
Given that § 3553(a)(2)(A) is a factor that Congress deliber-
ately omitted from the list applicable to revocation sentenc-
ing, relying on that factor when imposing a revocation
sentence would be improper. See Russello v. United States,
464 U.S. 16, 23 (1983) (“[Where] Congress includes particu-
lar language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Con-
gress acts intentionally and purposely in the disparate inclu-
sion or exclusion.” (alteration in original) (citation and
internal quotation marks omitted)).
In United States v. Booker, the Court held that § 3553(a)’s
sentencing factors guide appellate courts in “determining
whether a sentence is unreasonable.” Booker, 543 U.S. at 261.
In the case of a sentence imposed upon revocation of super-
vised release, it is the § 3583(e) factors that provide such
guidance. The improper reliance on a factor Congress decided
to omit from those to be considered at revocation sentencing,
as a primary basis for a revocation sentence, would contra-
vene the statute in a manner similar to that of a failure to con-
sider the factors specifically included in § 3583(e). Just as a
sentence would be unreasonable if the district court failed to
consider the factors listed in § 3553(a), see United States v.
Crosby, 397 F.3d 103, 115 (2d Cir. 2005), a sentence would
be unreasonable if the court based it primarily on an omitted
factor, such as a factor provided for in § 3553(a)(2)(A).
Although a court may consider the need to sanction an indi-
vidual for violating the conditions of probation or supervised
release when formulating its sentence at a revocation proceed-
ing, that type of “sanction” is distinct from the “just punish-
ment” referred to in § 3553(a)(2)(A). In the Chapter 7 policy
statements, the Sentencing Commission explained that viola-
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tions of probation or supervised release are properly charac-
terized as “breach[es] of trust” and distinguished sanctions for
such a breach from the “imposition of an appropriate punish-
ment for any new criminal conduct.” U.S. SENTENCING GUIDE-
LINES MANUAL, Ch. 7, Pt. A (2004) (emphasis added). Punish-
ment for the underlying offense, the Commission stated, must
be imposed separately, if at all, following a conviction by plea
or verdict in a separate criminal proceeding. The Commission
recognized, however, that in imposing a sentence upon revo-
cation, a court may properly “sanction the violator for failing
to abide by the conditions of the court-ordered supervision.”
Id. (emphasis added). In sum, at a revocation sentencing, a
court may appropriately sanction a violator for his “breach of
trust,” but may not punish him for the criminal conduct under-
lying the revocation.
[8] The omission of § 3553(a)(2)(A) from § 3583(e) also
makes clear that in imposing a revocation sentence, a court
may not properly consider a need to “promote respect for the
law,” based on the nature of the underlying criminal offense
committed, or on the “seriousness of the [underlying]
offense.” 18 U.S.C. § 3553(a)(2)(A). We recognize that the
difference between sanctioning a supervised release violator
for breach of trust and punishing him in order to promote
respect for the law is subtle indeed. We do not suggest that
a mere reference to promoting respect for the law would in
itself render a sentence unreasonable. However, such a refer-
ence is often intertwined with the concept of punishment, as
it is in § 3553(a)(2)(A) itself, and may serve as a basis for the
sentence imposed. For example, the district judge’s remarks
at the bail hearing demonstrate the extent to which he treated
the two concepts as related when imposing the sentence:
And to me, the sentence that I gave was necessary in
order to promote respect for the law. . . . But if pun-
ishment is the sentence that’s imposed in order to
promote respect for the law and to provide just pun-
ishment for the offense as that is used in Section
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3553(a)(2)(A), then I did think that you could take
that into account.
It is clear from reviewing the entire colloquy at the bail hear-
ing both that a primary basis for Miqbel’s sentence was pun-
ishment that was intended to promote respect for the law, and
that the court had begun to doubt the validity of such a basis.20
Even though the district court appears to have based its sen-
tencing decision in part on an impermissible factor, and may
have committed reversible error,21 we vacate for the reason we
considered first: the district court did not provide an adequate
statement of reasons for the sentence at the time of sentenc-
ing.
CONCLUSION
Because the district court failed to state specific reasons for
the particular sentence imposed, we vacate Miqbel’s sentence
and remand to the district court for resentencing.
VACATED and REMANDED for further proceedings
consistent with this opinion.
20As the district judge stated to defense counsel at the bail hearing: “I
told you that I thought you ought to be able to promote respect for the law
when somebody is on supervised release. I think I’m wrong now.”
21Because of the district court’s reliance on an impermissible sentencing
factor and the failure of the record to show that it considered the appropri-
ate § 3583(e) factors, we would likely be required to vacate and remand
for resentencing if for no other reason than to permit the judge to impose
a sentence on the basis of the proper factors. Cf. Montenegro-Rojo, 908
F.2d at 428 (9th Cir. 1990) (“[If] the district court considered both proper
and improper bases for departure, ‘we have no way to determine whether
any portion of the sentence was based upon consideration of the improper
factors,’ and must therefore vacate the sentence and remand for resentenc-
ing.” (citations omitted)).
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