UNITED STATES of America, Plaintiff-Appellant, v. Guadalupe Alberto GARCIA-LARA, Jr., a/k/a Jose Perez-Gonzales, a/k/a Armando Preciado-Ramirez, Defendant-Appellee, 499 F.3d 1133

TACHA, Chief Circuit Judge. Defendant-Appellee Guadalupe Garcia-Lara pleaded guilty to one count of possession with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1). Because Mr. Garcia-Lara had two prior convictions for controlled substance offenses, the “career offender” enhancement applied to his advisory sentence under the U.S. Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). See U.S.S.G. § 4B1.1. Believing the career offender enhancement overstated Mr.

Garcia-Lara’s criminal history, the District Court sentenced him to a below-Guidelines sentence of 140 months’ imprisonment. The Government appeals that sentence as substantively unreasonable. Exercising jurisdiction pursuant to 18 U.S.C. § 3731, we vacate Mr. Garcia-Lara’s sentence and remand for resentencing. I. BACKGROUND On November 20, 2004, a Kansas Highway Patrol trooper stopped Mr. Garcia-Lara for speeding as he was driving on Interstate 35 near Emporia, Kansas. The trooper received consent to search the vehicle from Mr.

Garcia-Lara, the sole occupant of the vehicle, and found approximately 18 pounds of marijuana and 557 grams of methamphetamine hidden inside two spare tires found in the trunk of the vehicle. A grand jury returned an indictment against Mr. Garcia-Lara, charging him with one count of possession with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1). Mr. Garcia-Lara pleaded guilty to the charge without a plea agreement on February 17, 2005. The U.S. Probation Office prepared a Presentence Investigation Report (“PSR”) in anticipation of Mr. Garcia-Lara’s sentencing.

The PSR reported a criminal history category of V and an initial base offense level of 32. Because two of Mr. Garcia-Lara’s prior convictions were for controlled substance offenses as defined in U.S.S.G. § 4B 1.2(b), the PSR applied the “career offender” provision of the Guidelines, U.S.S.G. § 4Bl.l(b)(A), raising his criminal history category to VI and his base offense level to 37. After applying a three-level reduction to the offense level for acceptance of responsibility, the PSR concluded Mr.

Garcia-Lara had a total offense level of 34 and a criminal history category of VI, resulting in an advisory Guidelines sentence of 262 to 327 months’ imprisonment. Applying 18 U.S.C. § 3553(a), the District Court concluded that a sentence of 262 months, at the bottom of the advisory Guidelines range, over-represented Mr. Garcia-Lara’s criminal history, resulting in a sentence greater than necessary to accomplish the goals of § 3553(a). Accordingly, the court sentenced Mr. Garcia-Lara as if the career offender enhancement did not apply.

Noting that the advisory Guidelines sentence for a non-career offender would be 140 to 175 months’ imprisonment, the District Court sentenced Mr. Garcia-Lara to 140 months. II. DISCUSSION A. Post-Rita Sentencing Review Since United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), this Court has repeatedly stated that we review a district court’s sentencing determination for reasonableness, which is guided by the statutory factors delineated in 18 U.S.C. § 3553(a). See, e.g., United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir.2006). In the Supreme Court’s recently issued opinion Rita v.

United States, — U.S.-, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), the majority referred to reasonableness review as an “abuse of discretion” standard. See id. at 2465 (“Given our explanation in Booker that appellate ‘reasonableness’ review merely asks whether the trial court abused its discretion, the presumption [of reasonableness applied to a within-Guidelines sentence] applies only on appellate review.”).

We write now, in some detail, to make clear that the Supreme Court’s reference in Rita to reasonableness review as an abuse-of-discretion standard does nothing to change the appellate reasonableness standard this Circuit has applied since Booker. As we explain, our case law post-Booker has consistently applied the principle that reasonableness, as defined by § 3553(a), is the measure of the appropriate use of a district court’s discretion; or, put differently, we review a district court’s sentence for abuse of discretion, asking whether it is reasonable under the § 3553(

a) factors. Our application of the reasonableness standard of review since Booker has necessarily been a review of a district court’s decision for abuse of discretion. For example, because a legal standard based on reasonableness is inherently fact dependent, see Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401-05, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990), we have implicitly acknowledged that we employ an abuse-of-discretion standard by reviewing a district court’s factual findings for clear error, United States v. Valtierra-Rojas, 468 F.3d 1235, 1241 n. 8 (10th Cir.2006).

Moreover, as the dissent recognizes, Booker itself implicitly equates reasonableness review with review for abuse of discretion, and Rita simply makes that equivalence explicit. In short, Rita says nothing new about the standard of review. But even though we accord deference to a district court’s sentencing decision, it is clear that district courts must apply, and our appellate review is guided by, the factors set forth in 18 U.S.C. § 3553(a). See United States v. Pruitt, 487 F.3d 1298, 1303 (10th Cir.2007) (“The district court must consider the sentencing factors set forth in 18 U.S.C. § 3553(

a) when imposing a sentence.”); Kristl, 437 F.3d at 1053 (noting that appellate reasonableness review is “guided by the factors set forth in 18 U.S.C. § 3553(a)”). Because reasonableness in sentencing is defined by statutory factors, it necessarily involves legal determinations. Consequently, even if we defer to lower courts’ application of the factors, we cannot do so when they commit legal errors. See, e.g., United States v. Soussi 316 F.3d 1095, 1108 (10th Cir.2002) (“A district court abuses its discretion if it makes an error of law.”).

Thus, a district court may abuse its discretion when, for example, it gives one statutory factor too much weight, see, e.g., United States v. Cage, 451 F.3d 585, 595 (10th Cir.2006), or expressly disregards another, see, e.g., United States v. Hildreth, 485 F.3d 1120, 1130 (10th Cir.2007). That is, sentencing courts may not ignore applicable case law interpreting reasonableness under § 3553(a), and this Court may not ignore a district court’s errors in

interpretation. Cooter & Gell, 496 U.S. at 402, 110 S.Ct. 2447 (noting that an abuse-of-discretion standard does not “preclude the appellate court’s correction of a district court’s legal errors”).

In short, in determining whether a sentence is reasonable, we defer to the district court’s exercise of discretion within the bounds of reasonableness: “[T]he fact that there is inevitably a range of sentences that could be held reasonable means that our affirmance of a sentence will necessarily defer, in effect, to the district court’s exercise of discretion in choosing a particular sentence within that range.” United States v. Sanchez-Juarez, 446 F.3d 1109, 1117 (10th Cir.2006) (emphasis added).

The fact that a range of reasonable sentences exists, beyond which we will not defer to a district court, makes clear that there are definite limits on a sentencing court’s exercise of discretion. See Rita, 127 S.Ct. at 2466-67 (“In sentencing, as in other areas, district judges at times make mistakes that are substantive.... Circuit courts exist to correct such mistakes when they occur.”). Our appellate review cannot merely rubber stamp the district court’s decision.

Rather than announcing a new or revised standard of review, Rita simply affirmed the appellate courts’ application of a “presumption” of reasonableness to within-Guidelines sentences on appellate review. Id. at 2462; see also id. at 2463 (“[T]he presumption reflects the fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case.”).

Indeed, the Court’s holding in Rita was simply that appellate courts may employ a presumption of reasonableness when reviewing proeedurally proper within-Guidelines sentences. The purpose of the Court’s reference in Rita to reasonableness review as an abuse-of-discretion standard was to emphasize that the presumption of reasonableness is an appellate presumption (i.e., sentencing courts may not apply it): “We repeat that the presumption before us is an appellate court presumption.

Given our emphasis in Booker that appellate ‘reasonableness’ review merely asks whether the trial court abused its discretion, the presumption applies only on appellate review.” Id. at 2465. In other words, the Court noted a settled proposition (i.e., “that appellate ‘reasonableness’ review merely asks whether the trial court abused its discretion”) in order to emphasize a logical conclusion that may be inferred from it (i.e., that “the presumption applies only on appellate review”).

To turn the Court’s statement regarding the appellate nature of the presumption into a holding regarding the standard of review, the dissent takes the statement out of context and expands upon it by relying on Justice Stevens’s concurring opinion, in which Justice Ginsburg joined. In relying on Justice Stevens’s concurrence, the dissent misunderstands our duty to apply Supreme Court precedent. Justices Stevens and Ginsburg fully joined the majority opinion (not merely the judgment), and the concurrence garnered only two votes.

Whatever compromises may have been required to bring Justices Stevens and Ginsburg on board the majority were made and are reflected in the text of the majority opinion. As the concurrence has no legal weight, we will not read it as a supplement to the Supreme Court’s clear majority opinion.

Finally, we note that, while the Rita Court also made clear that a sentence falling outside the Guidelines is not entitled to a “presumption of unreasonableness,” id. at 2467, the applicable Guidelines sentence and the policy statements of the Sentencing Commission nevertheless remain statutory factors that the district court must consider. See 18 U.S.C. § 3553(a)(4), (5). As the Supreme Court explicitly recognized in Booker, the sentencing factors contained in § 3553(

a) delimit a district court’s discretion. 543 U.S. at 264, 125 S.Ct. 738 (disagreeing with the view that, after Booker, a sentencing court has the same discretion it possessed prior to the Sentencing Act). Because the Guidelines are a factor under § 3553(a)(4) and (5), a sentencing court abuses its discretion when it does not consider them.

Booker, 543 U.S. at 264, 125 S.Ct. 738 (“The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.”); see also Cage, 451 F.3d at 594 (“Booker does not place original sentencing decisions entirely in the discretion of trial judges; the Guidelines— as an expression of the political will of Congress — continue to assert advisory influence on those decisions.”). In recognizing the continued importance of the Guidelines, we do not treat them as nearly mandatory, as the dissent suggests.

Indeed, we emphasize that a court may, in its discretion, conclude that a non-Guidelines sentence best serves the purposes of sentencing under § 3553(a). But if a court exercises its discretion to disregard, or give little weight to, the Guideline factors, § 3553(a)(4), (5), in crafting a sentence, it must find reasonable justification for doing so in the remaining § 3553(

a) factors. A court’s conclusion that the Guidelines are simply “wrong” or an inadequate reflection of the statutory sentencing purposes is an unreasonable application of the § 3553(

a) factors unless the court can justify the sentence imposed in light of the facts of the particular case considered under § 3553(a). B. Mr. Garciar-Lara’s Sentence We now turn specifically to Mr. Garcia-Lara’s sentence. Applying the “career offender” provision of the Guidelines, U.S.S.G. § 4Bl.l(b)(A), and an adjustment for acceptance of responsibility, the District Court correctly calculated an advisory Guidelines range of 262 to 327 months’ imprisonment. The court then sentenced Mr. Garcia-Lara to 140 months’ imprisonment — a 47%, 122-month decrease from the 262-month Guidelines minimum.

We note at the outset that the problem here does not he in the manner in which the District Court set forth its reasoning concerning the sentence imposed. In other words, the sentence is reasonable in a procedural sense. See Cage, 451 F.3d at 591 (explaining “[rjeasonableness has both procedural and substantive components”). Indeed, the District Court correctly calculated the advisory Guidelines sentence and then noted the pertinent § 3553(

a) factors it considered in varying from that advisory sentence. See United States v. Sanchez-Juarez, 446 F.3d 1109, 1117 (10th Cir.2006) (holding district courts must “provide sufficient reasons to allow meaningful appellate review of their discretionary sentencing decisions”). The issue before us is therefore whether the District Court’s reasons for the sentence imposed support the conclusion that the sentence is substantively reasonable.

We have held that, “[t]he farther the [trial] court diverges from the advisory guideline range, the more compelling the reasons for the divergence must be.” Valtierra-Rojas, 468 F.3d at 1239 (quotation omitted) (alterations in original). Specifically, an “extreme” divergence is reasonable given “dramatic” facts. Cage, 451 F.3d at 594. A “substantial” variance requires “compelling reasons, although they need not be as dramatic as the reasons supporting an extreme divergence.” Hildreth, 485 F.3d at 1128 (quotations omitted).

A lesser but still “significant” variance needs only “sufficient explanation and justification” to be within the range of reasonableness. United States v. Bishop, 469 F.3d 896, 908 (10th Cir.2006). To assess the magnitude of a variance, we look to the difference between the advisory Guidelines range and the sentence imposed in terms of both percentage and absolute number of months. Valtierra-Rojas, 468 F.3d at 1240. In terms of the absolute number of months, the 122-month divergence in this case more closely resembles variances we have characterized as “extreme,” see, e.g., United States v.

Mateo, 471 F.3d 1162, 1170 (10th Cir.2006) (99 months), than those we have characterized as “substantial,” see, e.g., Hildreth, 485 F.3d at 1128 (27 months). The 47%-percent decrease, however, more closely resembles divergences we have characterized as “substantial” or “significant.” See id. at 1127-28 (reviewing and categorizing variance cases). But we need not decide whether the divergence is “extreme” or “substantial” because, even under the level of scrutiny we apply to substantial variances, the sentence imposed is not reasonable.

As we explain below, the District Court did not justify the variance with “compelling reasons.” The District Court based the 140-month sentence on its conclusion that the “defendant’s criminal history category and the overall impact of the career offender adjustment overstates the seriousness of [the] defendant’s criminal history and produces a sentence which is greater than necessary to accomplish the goals of 18 U.S.C. § 3553.” In reaching this conclusion, the court specifically noted that none of Mr.

Garcia-Lara’s convictions were for crimes of violence, his prior drug convictions did not involve “large quantities” of drugs, his last drug conviction was at the age of 22 (Mr.

Garcia-Lara was 30 years old at the time of sentencing), and his “longest term in prison has been about 2]é years.” Based on these facts, the court concluded that a sentence of 140 months was “proper and reasonable” to “reflect the seriousness of the offense, to provide just punishment, to protect the public from further crimes of the defendant, and to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” See 18 U.S.C. § 3553(a)(2)(A), (2)(C), (6). First, the fact that Mr.

Garcia-Lara’s crimes were nonviolent and involved moderate quantities of drugs does not support the District Court’s conclusion that the career offender enhancement overstates his criminal history. The Guidelines do not condition application of the career offender provision on prior commission of crimes of violence; indeed, § 4B1.1 requires only “two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4Bl.l(a) (emphasis added). Nor does the career offender provision set a threshold quantity requirement in order for a controlled substance conviction to qualify.

Indeed, the purpose behind the career offender guideline is to carry out congressional intent to target specific recidivism, including repeat drug traffickers. See U.S.S.G. § 4B1.1 cmt. background. As reflected in the PSR, there is no question that Mr. Garcia-Lara is a recidivist drug dealer. Since Mr. Garcia-Lara entered the United States from Mexico in 1990, he has spent most of his time in prison or on probation, largely for controlled substance offenses. The PSR lists arrests beginning in August 1990 for narcotics offenses and indicates that Mr. Garcia-Lara’s deportation was ordered in 1990.

Shortly thereafter, in March 1991, he was convicted for selling cocaine. Apparently while Mr. Garcia-Lara was serving probation for this offense, he was arrested for the transport or sale of a controlled substance; was arrested, convicted, and spent ten days in jail for criminal trespass; and was arrested for the sale of cocaine. Less than a week after this last arrest for selling cocaine, Mr. Garcia-Lara’s probation for the March 1991 conviction was revoked. It appears that he then served over one year of his three-year prison term and was paroled in January 1994.

Approximately two months after being released on parole, Mr. Garcia-Lara was arrested and subsequently convicted for possession of cocaine and was sentenced to two years in prison. After serving over one year in prison, he was paroled in May 1995. Just short of two months after being released from prison, Mr. Garcia-Lara was arrested and subsequently convicted of possession of cocaine base for sale. He received a five-year prison sentence and served over two-and-a-half years in prison before being released on parole in June 1998 and subsequently deported. Less than two years after he was deported, Mr.

Garcia-Lara was again arrested — this time for re-entry after deportation — and was sentenced to 48 months in custody followed by three years of supervised release. He served three-and-a-half years in prison and was released from custody in November 2003. Less than one year later, on November 20, 2004, he committed the instant offense involving 18 pounds of marijuana and over 500 grams of methamphetamine. For every separate criminal conviction, Mr. Garcia-Lara gave a different alias. We recount Mr.

Garcia-Lara’s criminal history in such detail to illustrate his demonstrated propensity to break the law and, in particular, to commit drug offenses. Thus, to the extent the District Court believed the career offender enhancement over-represented Mr. Garcia-Lara’s prior criminal history, it ignored Congress’s policy of targeting recidivist drug offenders for more severe punishment. Such an exercise of the District Court’s discretion may be reasonable if there are sufficiently compelling reasons, after considering the § 3553(

a) factors, that justify the imposition of a non-Guidelines sentence. Here, the District Court has provided none. In particular, the court’s decision not to apply the career offender guideline is not justified by “particular characteristics of the defendant” that are “sufficiently uncommon.” Mateo, 471 F.3d at 1169. Rather, Mr. Garcia-Lara’s criminal history satisfies the requirement for the guideline’s application, namely two prior controlled substance offenses.

In addition to these offenses, the PSR notes several controlled substance arrests that did not result in conviction or for which the disposition is unknown. Further, the fact that Mr. Garcia-Lara’s last controlled substance offense occurred when he was 22 years old ignores the fact that he spent much of the intervening time in prison or, presumably, outside the country after he was deported. Similarly, even the fact that Mr.

Garcia-Lara’s longest prison term was three-and-a-half years (not two and a half, as the District Court found) ignores the reality that he had several such sentences, many following just a few months after a prior release from prison. In short, Mr. Garcia-Lara’s characteristics and criminal history are not “out of the ordinary.” Cage, 451 F.3d at 596. As our case law makes clear, a sentencing court may not accord ordinary facts extraordinary weight.

Id. at 595; see also Hildreth, 485 F.3d at 1129 (holding that sentence was unreasonable because the court did not distinguish the defendant or his offense “from the ordinary defendant upon which the Guidelines sentence is calculated”). That is, a sentencing court may not ignore the Guidelines calculation for the ordinary defendant and instead adopt its own sentencing philosophy. See Hildreth, 485 F.3d at 1129. Moreover, in the present case, because the District Court failed to distinguish Mr. Garcia-Lara from other career offenders, it incorrectly applied the § 3553(

a) factor requiring consideration of “the need to avoid unwarranted sentencing disparities among [similar] defendants.” § 3553(a)(6). The District Court explained that the 140-month sentence did not create “disparity” among defendants with similar records because the sentence “would be within the Guidelines range of a defendant under the same facts who was not treated as a career offender.” But this logic depends on the court’s unreasonable determination that Mr. Garcia-Lara should not be treated as a career offender.

The statute specifically requires that a sentencing court consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” § 3553(a)(6) (emphasis added). Because the court did not distinguish Mr. Garcia-Lara from the ordinary career offender, the court should have considered how the chosen sentence would further the goal of sentencing uniformity with respect to other career offenders with similar records convicted of the same offense.

The court’s substantial divergence from the applicable Guidelines range clearly does not further that goal. In sum, sentencing a career offender as if he did not have a career offender’s criminal record, absent sufficiently compelling circumstances, does not serve the statutory purposes noted by the District Court. The District Court’s 140-month sentence is therefore unreasonable. III. CONCLUSION For the foregoing reasons, we VACATE Mr. Garcia-Lara’s sentence and REMAND for resentencing. .

This method follows from our recognition that the "Guidelines are an expression of popular political will about sentencing that is entitled to due consideration when we determine reasonableness." Cage, 451 F.3d at 593. By requiring more justification the further the sentencing court varies from the recommended Guidelines sentence, we do not accord a non-Guidelines sentence a presumption of un reasonableness. Instead, we recognize that, when a sentencing court imposes a non-Guidelines sentence, it must provide reasons justifying its application of the § 3553(

a) factors to the facts of the particular case, see 18 U.S.C. § 3553(c)(2), including its decision not to follow the Guidelines, which "represent a critical advisory aspect of the § 3553(

a) factors." Cage, 451 F.3d at 594. By looking for more justification from a sentencing court the further it varies from the advisory Guidelines sentence, we simply hold sentencing courts to their statutory duty to consider all of the § 3553(

a) factors. In any case, we note that the Supreme Court will address the validity of this type of "proportionality” review during its next Term. See United States v. Gall, No. 06-7949. Until then, our Circuit precedent regarding non-Guidelines sentences remains binding. . We note, as the District Court points out, that the Guidelines encourage departures "[i]f reliable information indicates that the defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(b)(1).

The Application Notes make clear, however, that the Guidelines contemplate such a departure when, ‘‘for example, the defendant had two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period.” U.S.S.G. § 4A1.3 cmt. app. n. 3. As the lengthy recitation of Mr. Garcia-Lara’s record indicates, his case is not the type of case that warrants such a departure. . Cf.

Pruitt, 487 F.3d at 1310 (affirming as reasonable a 292-month Guidelines sentence for a career offender who had a nonviolent history and whose prior controlled substance offenses involved small quantities of drugs and occurred years before the offense for which the sentence was imposed). .

The dissent insists that, by remanding for resentencing, we "necessarily nullify the trial court’s § 3553 finding” that "a sentence longer than that selected by it would be greater than necessary to accomplish the goals of § 3553.” According to the dissent, if we were to "credit” this "finding,” we would not remand for resentencing. The District Court did not, however, "find” that a Guidelines sentence was greater than necessary to accomplish the sentencing goals. Here, the District Court “found” that Mr.

Garcia-Lara's past crimes were nonviolent, involved small drug quantities, occurred several years ago, and did not result in long sentences. It then considered these facts under the § 3553(

a) factors, ultimately reaching a legal conclusion that a particular sentence fulfills the sentencing purposes under § 3553(a). In reviewing Mr. Garcia-Lara's sentence, we have "credited” the court’s factual findings (i.e., we do not conclude that they are clearly erroneous), but we need not "credit” its legal conclusion if it is not a reasonable one. . In reaching this conclusion, we do not ignore our precedent in United States v. Shaw, 471 F.3d 1136 (10th Cir.2006). Tension may in fact exist among the § 3553(

a) factors as they apply to a particular defendant, and it is the sentencing court's job to resolve that tension. Shaw, 471 F.3d at 1141. But we disagree with the dissent's suggestion that such tension exists in this case. For tension to exist between § 3553(a)(1) (“the history and characteristics of the defendant”) and § 3553(a)(6) (uniformity in sentencing), the District Court must first distinguish Mr. Garcia-Lara’s characteristics and history from those of the ordinary career offender. As we explain, the District Court failed to do so.