UNITED STATES of America v. Lydia COOPER, Appellant, 437 F.3d 324

OPINION OF THE COURT SCIRICA, Chief Judge. Defendant Lydia Cooper contends her criminal sentence was unreasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (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. I. 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. 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). 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 eircum-stances.

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. II. A. 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”). 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). 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 law1 within the meaning of § 3742(a).”) (citation omitted); United States v. Martinez, 434 F.3d 1318, 1320 (11th Cir.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. 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. B. 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.” 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 articulate the reasons underlying its decision” and the court’s reasons “are not otherwise apparent from the record”) (quoting Becker v. ARCO Chem. Co., 207 F.3d 176, 180-81 (3d Cir.2000)). At least one court has held a sentencing judge is presumed to have considered all of the § 3553(

a) factors if a sentence is imposed within the applicable guidelines range. United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005). We decline to follow this approach. Although a within-guidelines sentence demonstrates the court considered one of the § 3553(

a) factors — namely, the guidelines range itself, 18 U.S.C. § 3553(a)(4) — it does not show the court considered the other standards reflected in that section, assuming they were raised. In consideration of the § 3553(

a) factors, a trial court must calculate the correct guidelines range applicable to a defendant’s particular circumstances. 18 U.S.C. § 3553(a)(4); United States v. Garcia, 413 F.3d 201, 220 n. 15 (2d Cir.2005) (citing United States v. Crosby, 397 F.3d 103, 111-12 (2nd Cir.2005)). As before Booker, the standard of proof under the guidelines for sentencing facts continues to be preponderance of the evidence. See United States v. Mack, 229 F.3d 226, 232-35 (3d Cir.2000); see also Mares, 402 F.3d at 519 (holding sentencing facts need only be determined by a preponderance of the evidence after Booker); McReynolds v.

United States, 397 F.3d 479, 481 (7th Cir.2005) (same). In addition to ensuring a trial court considered the § 3553(

a) factors, we must also ascertain whether those factors were reasonably applied to the circumstances of the case. In doing so, we apply a deferential standard, the trial court being in the best position to determine the appropriate sentence in light of the particular circumstances of the case. See United States v. Bennett, 161 F.3d 171, 196 (3d Cir.1998) (recognizing a district court’s decision not to adjust a sentence is entitled to “great deference” because “the sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility”) (quotations omitted); Marshall v.

Lansing, 839 F.2d 933, 948 (3d Cir.1988) (observing that district courts have historically been given broad discretion in imposing the proper sentence in criminal trials). Under such circumstances, deference should be given. As the Court of Appeals for the Seventh Circuit recently held, [t]he question is not how we ourselves would have resolved the factors identified as relevant by

section 3553(a) ... nor what sentence we ourselves ultimately might have decided to impose on the defendant. We are not sentencing judges. Rather, what we must decide is whether the district judge imposed the sentence he or she did for reasons that are logical and consistent with the factors set forth in

section 3553(a). Williams, 425 F.3d at 481. While we review for reasonableness whether a sentence lies within or outside the applicable guidelines range, see Booker, 125 S.Ct. at 765, 766 (noting appellate courts will apply the reasonableness standard “across the board” and “irrespective of whether the trial judge sentences within or outside the Guidelines range”), it is less likely that a within-guidelines sentence, as opposed to an outside-guidelines sentence, will be unreasonable. The advisory guidelines range is itself one of the § 3553(

a) factors, 18 U.S.C. § 3553(a)(4), and continues to play an integral

part in sentencing decisions. Booker, 125 S.Ct. at 767. In Booker, the Court explicitly directed district courts to continue to “take account of the Guidelines together with other sentencing goals.” Id. at 764. “The Guidelines remain an essential tool in creating a fair and uniform sentencing regime across the country,” United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005), and provide a natural starting point for the determination of the appropriate level of punishment for criminal conduct. See United States v. Talley, 431 F.3d 784, 787-88 (11th Cir.2005) (discussing the “central” role of the guidelines after Booker). The § 3553(

a) factors were intended to guide the Sentencing Commission in its formulation of sentencing guidelines, 28 U.S.C. §§ 991(b)(1)(A), 994(b), (g), (m); United States v. Frank, 864 F.2d 992, 1011 (3d Cir.1988); Scott, 426 F.3d at 1330 n. 5. Although a within-guidelines range sentence is more likely to be reasonable than one that lies outside the advisory guidelines range, a within-guidelines sentence is not necessarily reasonable per se. Otherwise, as several Courts of Appeals have concluded, we would come close to restoring the mandatory nature of the guidelines excised in Booker.

See Crosby, 397 F.3d at 115 (“Indeed, such per se rules would risk being invalidated as contrary to the Supreme Court’s holding in Booker/Fanfan, because they would effectively re-institute mandatory adherence to the Guidelines.”); United States v. Webb, 403 F.3d 373, 385 n. 9 (6th Cir.2005) (same); Mykytiuk, 415 F.3d at 607 (same); Talley, 431 F.3d at 787 (same). Nor do we find it necessary, as did the Court of Appeals for the Seventh Circuit in United States v. Mykytiuk, to adopt a rebuttable presumption of reasonableness for within-guidelines sentences. See Mykytiuk, 415 F.3d at 608.

Appellants already bear the burden of proving the unreasonableness of sentences on appeal. See Talley, 431 F.3d at 788 (“[T]he party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both that record and the factors in

section 3553(a).”). To sum up, appellants have the burden of demonstrating unreasonableness. A sentence that falls within the guidelines range is more likely to be reasonable than one outside the guidelines range. There are no magic words that a district judge must invoke when sentencing, but the record should demonstrate that the court considered the § 3553(

a) factors and any sentencing grounds properly raised by the parties which have recognized legal merit and factual support in the record. C. In this case, the District Court imposed a sentence at the highest end of the guidelines range, 105 months. Cooper has not met her burden on appeal of proving the sentence was unreasonable. The court addressed the § 3553(

a) factors and found “that the sentence to be imposed is reasonable in light of these considerations.” More importantly, the District Court appropriately addressed Cooper’s argument that her sentence was excessive considering her minimal criminal history compared to those of other, similarly sentenced defendants. The court rejected this contention, citing the serious nature of Cooper’s crimes, the effect of her conduct on the public, and that she was “treated well” at her prior sentencing hearing.

It is reasonable to conclude that her criminal history category correctly reflected the actual seriousness of her conduct. Taken as a whole, the record shows the court adequately considered the § 3553(

a) factors and reasonably applied them to the circumstances presented in Cooper’s particular case. We find the District Court’s judgment was reasonable under Booker. III. Cooper also contends the District Court erred when it failed to grant her motion to depart downward. She again argues her criminal history category overrepresented the seriousness of her past crimes. Pre-Booker, we declined to review discretionary decisions to deny departure, unless for allegation of legal error, United States v.

Ruiz, 536 U.S. 622, 626-28, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002); Denardi, 892 F.2d at 271-72, nor did we review appeals by defendants challenging the extent of a downward departure, United States v. Khalil, 132 F.3d 897, 898 (3d Cir.1997) (citing United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990)); accord United States v.

Vizcarra-Angulo, 904 F.2d 22, 22-23 (9th Cir.1990) (finding no jurisdiction where the district court departed downward for government assistance but did not further depart in consideration of defendant’s assertion that he was “functionally illiterate, unsophisticated, and was victimized by his coconspirators”). The foundation for these holdings lay in our conclusion that 18 U.S.C. §§ 3742(

a) and (

b) reflect Congress’s intent to foreclose review of a sentencing court’s decision not to depart. See Denardi, 892 F.2d at 271-72 (“The portion of the statute providing for appeals by a defendant (18 U.S.C. § 3742) simply does not authorize” an appeal from a discretionary refusal not to depart.) (footnote omitted); Parker, 902 F.2d at 222 (“The circumstances in which a defendant may appeal a sentence are set forth in 18 U.S.C. § 3742(

a) and do not include situations in which a defendant is seeking an enhanced downward departure.”); S. Rep. 98-225, at 150 (1983), as reprinted, in 1984 U.S.C.C.A.N. 3182, 3333 (“This

section establishes a limited practice of appellate review of sentences in the federal criminal justice system, ... by confining it to [the situations enumerated in §§ 3742(

a) and (b)].”). The Supreme Court has concurred. Ruiz, 536 U.S. at 626-28,122 S.Ct. 2450. We conclude the Supreme Court’s decision in Booker does not compel us to reverse this precedent. In its remedial opinion in Booker, the Court excised § 3742(

e) and § 3553(

b) from the federal sentencing guidelines. 125 S.Ct. at 764. The former provision established standards of review in sentencing appeals, while the latter made the federal guidelines mandatory. But the Court explicitly left intact §§ 3742(

a) and (b). Id. at 765 (citing the existence of §§ 3742(

a) and (

b) to support its holding that 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)”). Nothing in Booker addresses or overrules the Court’s precedent in Ruiz, which recognized the limitations effected by §§ 3742(

a) and (

b) on a defendant’s right to appeal decisions not to depart. Ruiz, 536 U.S. at 626-28, 122 S.Ct. 2450. We follow the Courts of Appeals for the First, Sixth, Eighth, Tenth, and Eleventh Circuits in declining to review, after Booker, a district court’s decision to deny departure. See United States v. Burdi, 414 F.3d 216, 220 (1st Cir.2005) (finding no jurisdiction to review a decision not to depart after Booker); United States v. Puckett, 422 F.3d 340, 345 (6th Cir.2005) (same); United States v. Frokjer, 415 F.3d 865, 874-75 (8th Cir.2005) (“[W]e see no reason why Booker — which left intact §§ 3742(

a) and (b) — should alter our rule that a district court’s discretionary decision not to depart downward is unreviewable.”); United States v. Sierra-Castillo, 405 F.3d 932, 936 (10th Cir.2005) (declining to review decisions not to depart after Booker); United States v. Winingear, 422 F.3d 1241, 1245-46 (11th Cir.2005) (same). IV. The judgment of sentence will be affirmed. . Cooper objected to her classification as a career offender at sentencing, but does not challenge that classification here. .

Pre-guidelines sentences were based on the facts of the crime, the criminal history of the defendant, the defendant’s personal characteristics, the applicable statutory law, and general penological goals and principles. These are all found in 18 U.S.C. §§ 3553(a)(1), (2), and (3). To this mix, Congress added sentencing guidelines (§ 3553(a)(4)) that were specific, detailed, quantitative, and mandatory. That the guidelines are now advisory provides some play in the joints of the sentencing scheme.

Nonetheless, district judges are still asked to resolve the tension between broad principles, on the one hand, and highly specific guidelines, on the other. A broader sentencing guidelines regime would harmonize these two considerations. . 18 U.S.C. § 3742(

a) provides: A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence— (1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; or (3) is greater than the sentence specified in the applicable guideline range ...; or (4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable. .

Although we rely solely on 18 U.S.C. § 3742(a)(1) as the basis for our jurisdiction to review for reasonableness, we note there also might be jurisdiction under 28 U.S.C. § 1291. This Court has regularly taken jurisdiction over sentencing appeals under both statutes. See, e.g., United States v. Graham, 72 F.3d 352, 358 n. 8 (3d Cir.1995) ("[W]e believe our jurisdiction to review [defendant's] sentence lies pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1) because [defendant] has alleged that his sentence was imposed in violation of law, that is, in violation of his constitutional rights.”); United States v.

King, 21 F.3d 1302, 1304 (3d Cir.1994) ("We have jurisdiction over [defendant’s] appeal from the district court's judgment of sentence pursuant to 18 U.S.C. § 3742(

a) and 28 U.S.C. § 1291.”).

Section 1291 provides: “courts of appeals ... shall have jurisdiction of appeals from all ■final decisions of the district courts....” Sentences imposed in a criminal case are "final decisions.” Berman v. United States, 302 U.S. 211, 212-13, 58 S.Ct. 164, 82 L.Ed. 204 (1937); United States v. Moskow, 588 F.2d 882, 889 (3d Cir.1978). Prior to the implementation of the Sentencing Reform Act of 1984(SRA), § 1291 provided the basis for our review of sentences. See Moskow, 588 F.2d at 889 (finding jurisdiction under § 1291 to hear the appeal of a judgment of sentence entered after a guilty plea).

Although this review was generally limited to "illegality or abuse of discretion,” see, e.g., United States v. Fessler, 453 F.2d 953, 954 (3d Cir.1972), this practice was based not on a lack of jurisdiction, but on the wide discretion of sentencing courts which made reversal nearly impossible. United States v.

McAndrews, 12 F.3d 273, 276-77 (1st Cir.1993) ("[T]he theoretical possibility of an appeal had few practical consequences; since judges possessed extremely wide discretion and were not required to state reasons for imposing particular punishments, sentences were virtually unreviewable (so long as they fell within applicable statutory limits).”); see also Koon v. United States, 518 U.S. 81, 96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) ("Before the Guidelines system, a federal criminal sentence within statutory limits was, for all practical purposes, not reviewable on appeal.”) (emphasis added); United States v.

Ready, 82 F.3d 551, 555 (2d Cir.1996) (recognizing a pre-SRA right to appeal a sentence under § 1291, but noting the reviewable issues were limited); S. Rep. 98-225, at 150 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3333 ("The reason given for unavailability of appellate review of sentences under current law is the fact that sentencing judges have traditionally had almost absolute discretion to impose any sentence legally available in a particular case.”). After the adoption of the SRA, judges no longer exercised near unfettered discretion.

Therefore, the narrow pre-SRA review under a different sentencing regime may provide uncertain guidance. In any event, Booker states sentencing judges must "take account of the Guidelines together with other sentencing goals.” 543 U.S. 220, 125 S.Ct. 738, 764, 160 L.Ed.2d 621 (2005). . Although only the Courts of Appeals for the Eighth and Eleventh Circuits have specifically addressed jurisdiction, United States v. Frokjer, 415 F.3d 865, 875 n. 3 (8th Cir.2005); United States v. Martinez, 434 F.3d 1318, 1320 (11th Cir.2006), other courts similarly apply the reasonableness standard of review. United States v.

Benedetti, 433 F.3d 111, 120 (1st Cir.2005) (contemplating review of “all sentences imposed post-Booker ... for reasonableness based on the factors enumerated in

section 3553(a)”); United States v. Crosby, 397 F.3d 103, 114-16 (2d Cir.2005) (describing appellate review of both within— and outside-guidelines sentences for reasonableness after Booker), abrogated on other grounds by United States v. Fagans, 406 F.3d 138, 142 (2d Cir.2005); United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.2005) (noting after Booker, district courts must consider the § 3553(

a) factors and calculate the appropriate guidelines range, and the imposed sentence will be affirmed "as long as it is within ' the statutorily prescribed range ... and is reasonable”) (citations omitted); United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.2005) (holding sentences will be reviewed for reasonableness post -Booker, including those imposed “within a properly calculated Guideline range”); United States v. McBride, 434 F.3d 470, 476-77 (6th Cir.2006) (holding the court would “review ... a defendant’s claim that his sentence is excessive based on the district court’s unreasonable analysis of the

section 3553(

a) factors in their totality” based on "Booker's mandate”); United States v. Mykytiuk, 415 F.3d 606, 607-08 (7th Cir.2005) (holding Booker requires "that we measure each defendant's sentence against the factors set forth in § 3553(a),” including "those sentences that fall within a properly calculated Guidelines range"); United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.2006) (holding Booker "mandate[d]” review of “ultimate” sentences for reasonableness); United States v.

Morales-Chaires, 430 F.3d 1124, 1128 (10th Cir.2005) (applying the reasonableness standard to sentences imposed post -Booker)-, United States v. Price, 409 F.3d 436, 442 (D.C.Cir.2005) (“Under Booker, we review the District Court’s sentence to ensure that it is reasonable in light of the sentencing factors that Congress specified in 18 U.S.C. § 3553(a).”). . On this issue, we disagree with the decision of the Court of Appeals for the Eleventh Circuit in United States v. Scott, where the court held a district court’s statement that it considered both the defendant’s arguments and the § 3553(

a) factors at sentencing is by itself sufficient for Booker purposes. 426 F.3d 1324, 1329-30 (11th Cir.2005); see also United States v. Talley, 431 F.3d 784, 786 (11th Cir.2005). . We do not address here the standard of proof for finding a separate crime under relevant law. . We are well aware that sentencing judges normally state and resolve sentencing issues from the bench while the sentencing proceeding is underway.

As we have previously observed, " ‘[djistrict judges normally deliver their decisions on sentencing from the bench, just after, and sometimes in the course of, the presentation of numerous arguments and even evidence as to the permissible range and proper sentence. These often spontaneous remarks are addressed primarily to the case at hand and are unlikely to be a perfect or complete statement of all of the surrounding law.' ” Rios v. Wiley, 201 F.3d 257, 268 (3d Cir.2000) (quoting United States v. Saldana, 109 F.3d 100, 104 (1st Cir.1997)).

Although Rios was superseded by statute on other grounds, see United States v. Saintville, 218 F.3d 246, 249 (3d Cir.2000), our observation was not affected. .The standards of review set forth here— including the recognition of a district court's broad discretion and the requirement that a court actually exercise that discretion — are not unique to sentencing decisions. These standards are applied whenever we review decisions committed to the discretion of an other entity, including when we review the admissibility of evidence in criminal cases, see, e.g., United States v.

Johnson, 388 F.3d 96, 101 (3d Cir.2004) (reviewing the admission of prior conviction evidence for abuse of discretion but finding error when the trial court failed to consider the admissibility of the evidence under Fed.R.Evid. 609(a)(1)), orders on civil discovery motions, see, e.g., Stick v. United States, 730 F.2d 115, 117-18 (3d Cir.1984) ("The substantial discretion granted to trial courts on discovery motions should not be lightly disturbed, even if the reviewing court’s notions of fairness would have led it to a different result.”) (citation omitted), and agency actions, see, e.g., NRDC v.

EPA, 790 F.2d 289, 297 (3d Cir.1986) (holding an agency's "decision [must be] based on a consideration of the relevant factors”) (quotation omitted); Harberson v. NLRB, 810 F.2d 977, 984 (10th Cir.1987) ("It is an elementary principle of administrative law that an administrative agency must provide reasons for its decisions.”). . The federal sentencing guidelines represent the collective determination of three governmental bodies — Congress, the Judiciary, and the Sentencing Commission — as to the appropriate punishments for a wide range of criminal conduct. See S.

Rep. 98-225, at 39 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3222 (declaring Congress’s intent to "assure that sentences are fair both to the offender and to society, and that such fairness is reflected both in the individual case and in the pattern of sentences in all federal criminal cases”); S. Rep. 98-225, at 151 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3334 (anticipating that case law developed from appellate review of outside-guidelines sentences "will assist the Sentencing Commission in refining the sentencing guidelines as the need arises”); see also United States v.

Mykytiuk, 415 F.3d 606, 607 (7th Cir.2005) ("The Sentencing Guidelines represent at this point eighteen years’ worth of careful consideration of the proper sentence for federal offenses.”). . We note the Seventh Circuit's observation that "reasonableness is a range, not a point.” United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005). "If the judge could, without abusing his discretion, have ruled in the defendant’s favor, the defendant is entitled to insist that the judge exercise discretion, though he cannot complain if the exercise goes against him.” Id.