On Appeal from the United States District Court for the Middle District of Pennsylvania D.C. Criminal No. 03-cr-00333-3 (Honorable James M. Munley)
The opinion of the court was delivered by: Scirica, Chief Judge.
Before: SCIRICA, Chief Judge, VAN ANTWERPEN and ALDISERT, Circuit Judges
Defendant Lydia Cooper contends her criminal sentence was unreasonable under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). Cooper also challenges the District Court's failure to depart downward under U.S.S.G. § 4A1.3. At issue is the imposition of criminal sentences post-Booker. We will affirm.
On September 2, 2004, Cooper pleaded guilty to conspiracy to distribute and possess with intent to deliver cocaine base (crack) in violation of 21 U.S.C. § 846. Cooper had two prior convictions in 1989 - conspiracy to deliver .39 grams of cocaine and conspiracy to possess with intent to deliver 22 packets of cocaine. The District Court classified Cooper as a career offender, placing her at an offense level of 29 and a criminal history category of VI, or a guidelines range of 151 to 181 months.*fn1
Cooper was sentenced on January 31, 2005, three weeks after the Supreme Court issued its opinion in United States v. Booker, which held that the federal sentencing guidelines are advisory. 125 S. Ct. at 764--65. After Booker, "[t]he district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." Id. at 767. As before Booker, district courts must impose sentences that promote the "sentencing goals" listed in 18 U.S.C. § 3553(a).*fn2 Id. at 764--65.
At sentencing, the District Court granted the government's motion for a reduction under U.S.S.G § 5K1.1 in light of her substantial assistance to the government. The court concluded Cooper's assistance warranted a seven-level departure, resulting in an advisory guidelines range of 84 to 105 months.
Cooper requested a further departure of one level under U.S.S.G. § 4A1.3, contending her assigned criminal history category significantly over-represented the seriousness of her actual criminal past. She asked the court to consider several facts, including the 15-year lapse between her predicate and prior offenses and the small amount of drugs involved in her prior crimes. Cooper pointed out she received relatively short, concurrent sentences for the prior offenses - 6 to 23 months incarceration and two years probation - and was paroled after serving the minimum sentence.
The District Court denied Cooper's motion. The court noted the "seriousness" of Cooper's three drug trafficking crimes and found it significant that she committed the second of the two prior offenses while on bail for the first offense. Accordingly, the court found an additional departure was not warranted "under all of the circumstances."
Having determined the applicable advisory guidelines range, the court turned to Cooper's sentence. Cooper argued an 84-month sentence was appropriate in light of her previously asserted mitigating circumstances. The District Court rejected Cooper's argument and sentenced her to 105 months in prison. The court first listed the § 3553(a) factors, finding Cooper's sentence "satisfies the purposes set forth in 18 U.S.C. 3553(a)" and was "reasonable in light of these considerations." Addressing Cooper's request for a lighter sentence, the court stated:
But the nature of the offense is so serious. This was a very serious drug trafficking business, which the Defendant was an integral part of it [sic], and I cannot ignore the effects of her involvement in this case on the public and all the users through the years. I don't feel, if I didn't impose a sentence that I intend to impose, I would be fulfilling my obligations as a Judge. . . .
It is a serious offense. Let me tell you, you were part and parcel of it for a long period of time, and you were treated very well at the sentencing. I think that the Government's motion was more than generous. I was convinced by Mr. Elliott [defense counsel] to keep it within that. I had full intentions of giving you more time here today.
In United States v. Booker, the Supreme Court directed appellate courts to review sentences for reasonableness, stating this review applied "across the board." 125 S. Ct. at 764--67 (noting the Sentencing Reform Act "continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range)"). According to the Court, our review is guided by the factors set forth in 18 U.S.C. § 3553(a), the same factors the Court directed district judges to consider when sentencing defendants under the advisory guidelines. Id. at 764--65.
We have jurisdiction to review Cooper's sentence for reasonableness under 18 U.S.C. § 3742(a)(1) (authorizing the appeal of sentences "imposed in violation of law").*fn3 The Supreme Court did not explain the jurisdictional basis for the reasonableness review it mandated in Booker. We believe an unreasonable sentence is "imposed in violation of law" under 18 U.S.C. § 3742(a)(1).*fn4 See 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).") (citation omitted); United States v. Martinez, No. 05-12706, -- F.3d --, 2006 WL 39541, at *3(11th Cir. Jan. 9, 2006)("Although the Supreme Court in Booker did not identify which provision of § 3742(a) provided for appeals for 'unreasonableness,' we conclude that 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)."). Accordingly, we have jurisdiction under § 3742(a)(1) to review sentences for reasonableness.*fn5
Our concurring colleague would hold Booker sets forth the standard of review only for the limited number of sentences reviewable under §§ 3742(a) and (b) pre-Booker, and concludes we do not have jurisdiction to review Cooper's sentence. He notes that in United States v. Denardi, 892 F.2d 269, 271--72 (3d Cir. 1989), we declined to hold a sentencing judge's inadequate consideration of the § 3553(a) factors "converts an unappealable exercise of discretion into an error of law that may be reviewed under § 3742(a)(1)." We based our decision in Denardi on a finding of Congressional intent to foreclose appellate review of discretionary decisions not to depart. Denardi, 892 F.2d at 271--72. But in enacting §§ 3742(a)(1) and (b)(1), Congress could not have contemplated that the sentencing scheme it adopted would later be declared advisory. In light of the advisory sentencing guidelines scheme, we do not find an affirmative Congressional intent to foreclose reasonableness review, and accordingly we do not believe that our holding conflicts with Denardi.
To determine if the court acted reasonably in imposing the resulting sentence, we must first be satisfied the court exercised its discretion by considering the relevant factors. United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). The relevant factors are:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed--(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . . .
18 U.S.C. § 3553(a). The record must demonstrate the trial court gave meaningful consideration to the § 3553(a) factors. See United States v. Williams, 425 F.3d 478, 480 (7th Cir. 2005). The court need not discuss every argument made by a litigant if an argument is clearly without merit. Cunningham, 429 F.3d at 678. Nor must a court discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing. Williams, 425 F.3d at 480; see United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (holding "nothing in Booker or elsewhere requires the district court to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors"). Nor will we require district judges to routinely state by rote that they have read the Booker decision or that they know the sentencing guidelines are now advisory.
On the other hand, a rote statement of the § 3553(a) factors should not suffice if at sentencing either the defendant or the prosecution properly raises "a ground of recognized legal merit (provided it has a factual basis)" and the court fails to address it. Cunningham, 429 F.3d at 679. As the Court of Appeals for the Seventh Circuit explained, "we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise."*fn6 Id.; cf. United States v. Johnson,388 F.3d 96, 101 (3d Cir. 2004) (holding "there is no way to review [a court's] exercise of discretion" if it "does not ...