UNITED STATES of America, Plaintiff-Appellant, v. Samuel F. COLLINGTON, Defendant-Appellee, 461 F.3d 805

MARTIN, J., delivered the opinion of the court, in which SARGUS, D. J., joined. GILMAN, J. (pp. 811-817), delivered a separate dissenting opinion. OPINION BOYCE F. MARTIN, JR., Circuit Judge. Samuel Collington pled guilty to possession with intent to distribute more than fifty grams of crack cocaine, 21 U.S.C. § 841(a)(1), felon in possession of a firearm, 18 U.S.C. § 922(g), and possession of a machine gun, 18 U.S.C. § 922(o).

At sentencing, the district court calculated an advisory guideline range of 188 to 235 months of imprisonment, but determined that a variance was appropriate and sentenced Collington to 120 months, the statutory mandatory minimum for the charges he pled guilty to. The government now appeals Collington’s sentence for reasonableness. Based on the following discussion, we affirm the sentence imposed by the district court. I. On August 10, 2004, Collington was pulled over for speeding in Canton, Ohio. As a result of the traffic stop, Collington was arrested for driving without a valid driver’s license.

A search of Collington’s person incident to his arrest revealed fifty-three grams of crack cocaine hidden in his waistband. Officers obtained a search warrant for Collington’s residence and found 200 grams of crack cocaine, a pipe bomb, ammunition, and four firearms, including a loaded machine gun. Collington pled guilty to possession of over fifty grams of crack cocaine with the intent to distribute, 21 U.S.C. § 841(a)(1), being a felon in possession of a firearm, 18 U.S.C. § 922(g), and unlawful possession of a machine gun, 18 U.S.C. § 922(o).

The plea agreement anticipated that Colling-ton’s offense level would be thirty-three and his criminal history to be a III, yielding an advisory guidelines range of 168 to 210 months. Upon review of the presen-tence report, the district court decided that Collington’s offense level was thirty-three and his criminal history was a IV, resulting in an advisory guidelines range of 188 to 235 months.

At Collington’s sentencing hearing, the district court undertook what it described as a “three-step process.” The first step was to calculate the appropriate advisory guideline range, which the district court did with no objection from either side to the resulting range of 188 to 235 months. The district court then proceeded to the second and third steps of its analysis: determining whether a variance from the guidelines range would be appropriate in this case and considering the

section 3553(

a) factors and the guidelines range to determine what sentence would be a “reasonable sentencing option[ ] for this Defendant.” To aid the court in its decision-making process, it heard from Collington’s counsel and then questioned Collington regarding his personal history and the severity of the crimes in question. The court then decided to vary downward from the sentencing guidelines and impose a 120 month sentence with the full five-year period of supervised release. The court felt that a downward variance was justified given Collington’s personal history, his criminal history, and his age.

The government now appeals that sentence as being unreasonably low. II. . We review sentences for reasonableness. United States v. Webb, 403 F.3d 373, 383. (6th Cir.2005). At the outset, it is worth noting that the district court in this case and the government in its brief to this Court confused the statutory mandate with the appellate standard of review. “[A] district court’s mandate is to impose ‘a sentence sufficient, but not greater than necessary, to comply with the purposes’ of

section 3553(a)(2). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task.” United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006) (emphasis in original). In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court invalidated the mandatory use of the Sentencing Guidelines and held they are now “effectively advisory.” We have held that “[o]nce the appropriate advisory Guideline range is calculated, the district court throws this ingredient into the

section 3553(

a) mix!” United States v. McBride, 434 F.3d 470, 476 (6th Cir.2006).

Section 3553(

a) instructs a district court to impose “a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [section 3553(a)(2) ].” 18 U.S.C. § 3553(a). The 3553(a)(2) factors which are to be considered when sentencing are the seriousness of the offense, deterrence of future crimes, protection of the public from future crimes of the defendant, and providing the defendant with needed training or correctional treatment. 18 U.S.C. § 3553(a)(2). Because the Sentencing Guidelines are now advisory, a district court is permitted to vary from those guidelines in order to impose a sentence which fits the mandate of

section 3553(a). See McBride, 434 F.3d at 476. Although we have held that a sentence within the guidelines is presumptively reasonable, see United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006), this says nothing about sentences outside the advisory range. As we said in Foreman, “Williams does not mean that a sentence outside of the Guidelines range — either higher or lower — is presumptively un reasonable. It is not.” 436 F.3d at 644. Rather, our reasonableness review is in light of the 3553(

a) factors which the district court felt justified such a variance. We have now split our reasonableness review into two inquiries: procedural reasonableness and substantive reasonableness. A sentence may be procedurally unreasonable if “the district judge fails to ‘consider’ the applicable Guidelines range or neglects to ‘consider’ the other factors listed' in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration.” Webb, 403 F.3d at 383.

A sentence may be considered substantively unreasonable when the district court “select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(

a) factors or giv[es] an unreasonable amount of weight to any pertinent factor.” Id. at 385. It is in this light that we review Collington’s sentence, specifically the district court’s downward variance from the advisory guidelines range. The district court, in this case, varied downward from the guideline range of 188 to 235 months to give Collington a sentence of 120 months. The district court explained at the sentencing hearing that such a variance was justified in this case because of a number of factors which made Collington’s case an outlier and which the guidelines did not account for.

The district court found that, despite Coll-ington’s criminal history being at a IV, Collington “has never been in custody for any substantial period of time,” having only been imprisoned for seven months before this crime. The district court also noted that the criminal history did not reflect that this incident was the first time 'that this quantity of drugs and guns had been found in Collington’s possession.

As we have explained before, “[p]rior to Booker, sentences outside of the Guideline range were severely limited; now, ‘with greater latitude’ a ‘district court need only consider [the Guideline range] along with its analysis of the

section 3553(

a) factors.’ ” United States v. Martin, 438 F.3d 621, 641 (6th Cir.2006) (Martin, J., concurring) (quoting McBride, 434 F.3d at 476). Additionally, [i]n appropriate cases ... a district court may conclude that the criminal history category overstates the severity of the defendant’s criminal history or that a lower sentence would still comply with and serve the mandates of

section 8553(a). That is, a district court may look beneath the specific criminal history score and advisory guideline calculation to reach the appropriate sentence. Id. at 642. Finally, the district court noted Colling-ton’s family history, ■ which included his father being murdered in their home when Collington was nine and losing his mother to cancer two years later. As a result, the district court ordered Collington to undergo mental health counseling.

Also, the district court required that after Colling-ton’s imprisonment, he be under supervised release for five years, including aggressive drug testing during that time. We find this sentence to be reasonable. The district court took the time to consider arguments from defense counsel, the government, and questioned Collington himself about the current charges, his history, and his desire to reform. The district court’s explanation for this variance from the guideline range is a reasonable one.

First, the district court felt that the Sentencing Guidelines did not accurately reflect Collington’s actual criminal history. Additionally, the district court appeared to be persuaded by the fact that Collington had only previously served seven months in prison before these charges and was an ideal candidate for reform. While the district court did not explicitly name each of the 3558(

a) factors that it was using to arrive at Collington’s sentence, a reasonable sentence based on consideration of the factors does not require a rote listing. United States v. Vonner, 452 F.3d 560 (6th Cir.2006) (citing United States v. Williams, 436 F.3d 706, 708-09 (6th Cir.2006) in that this Court does not require “the ritual incantation of these factors to affirm a sentence.”).

In this case, the record shows a deep consideration of the seriousness of the offense which the district court referred to the crime as “heinous” and “particularly offensive.” Next, the district court considered the history and characteristics of the defendant. In the court’s sentencing opinion, it looked beyond the criminal history number and reviewed each of Collington’s previous crimes and how those affected its decision. See Martin, 438 F.3d at 642 (“a district court may conclude that the criminal history category overstates the severity of the defendant’s criminal history”).

It then reviewed Collington’s personal history, including the early deaths of his parents and the mistreatment from his other relatives who “apparently were more interested in the federal benefits he and his brother received than in the brothers’ welfare.” Dist. Ct.’s Opinion of Aug. 1, 2005 at 2-3.

Finally, the district court considered the need for the sentence imposed by emphasizing its belief that a 120 month sentence is sufficient enough to reflect the crimes committed while allowing for the possibility that Collington may reform and after his release from prison, when he is in his mid-thirties, may go on to a productive life in society. See Martin, 438 F.3d at 642. Given this detailed and in-depth analysis of Collington’s sentence by the district court in the light of all relevant sentencing factors, this sentence appears to be procedurally and substantively reasonable.

While a large variance requires a greater explanation, that standard was met here. The district court explained its analysis in reaching this sentencing determination and its analysis is sound. This Court must show some level of deference to the district court in sentencing, especially when that district court provides this Court with a factor-by-factor consideration of the relevant

section 3553(

a) factors. We have held that “we may conclude that a sentence is unreasonable when the district judge fails to ‘consider’ the applicable guidelines range or neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and instead simply, selects what the judge deems an appropriate sentence without such consideration.” Webb, 403 F.3d at 383. Neither of these situations is the case here as the district court considered both the guidelines range and the 3553(

a) factors. Its final sentence was not random, but a reflection of its consideration of both. The dissent, in arguing that Collington’s sentence was unreasonable, quotes repeatedly from the district court’s oral and written decision in order to show why Coll-ington should not have received such a lenient sentence.

E.g., Dissent Opn. at pg. 811 (noting the district court’s characterization of the offenses as “serious” and “particularly offensive”); Dissent Opn. at pg. 812 (stating that the district court’s “normal inclination would be to sentence at the high to mid point range,” that the sentence was “a gift,” and that the district court said “[p]art of me thinks putting you away for 20 years would make more sense”). While the dissent finds these selective quotations to weaken the reasonableness of district court’s final sentence, we feel these statements in fact bolster the reasonableness of the sentence.

It is the district court’s very consideration of both the reasons for leniency and for a harsh penalty that makes its explanation a reasonable one and the sentence itself reasonable. The district court did not ignore these facts, but plainly had them in the front of its mind when it chose the sentence for Collington. If the district court had failed to explicitly mention these factors, then that failure would strongly support a finding that the sentence was unreasonable.

Therefore, the dissent’s attempt to use the district court’s explicit mention of these factors as cause to find the sentence unreasonable seems antithetical to our review for reasonableness. When the dissent asks for a district court to be “internally consistent” in its explanation, Dissent Opn. at 814, it appears to request a one-sided explanation from a district court: leniency or harshness, not both. However, the district court’s consideration of both sides strengthens a sentence’s reasonableness; it does not diminish it.

Additionally, the district court did not “select[] the sentence arbitrarily, bas[e] the sentence on impermissible factors, fail[] to consider pertinent § 3553(

a) factors, or giv[e] an unreasonable amount of weight to any pertinent factor.” Id. at 385 To argue that the district court in this case selected Collington’s sentence arbitrarily is to wholly and unfairly dismiss the pages of analysis conducted by the district court including discussions with Collington and a factor-by-factor analysis in its sentencing opinion. The district court did not use an “impermissible factors” as it couched all of its reasons for Collington’s sentence in the factors listed in

section 3553(a). The district court, also, did not assign an unreasonable amount of weight to any of the factors which it considered. The district court did rely heavily on its belief that Collington is an ideal candidate for reform. However, that belief shows a consideration of not one factor, but arguably all of the factors, including the severity of the offense and the history and characteristics of the defendant. Therefore, we find Colling-ton’s sentence to be substantively reasonable. When a district court considers the relevant 3553(

a) factors in-depth and reaches its determination that the appropriate sentence varies outside the advisory guidelines range, we are very reluctant to find the sentence unreasonable. Doing so would essentially amount to substituting our judgment for the district court’s as to how long the defendant should serve. We ought to give the district court the benefit of the doubt in these circumstances unless the variance is inadequately explained or substantively unreasonable. United States v. Buchanan, 449 F.3d 731, 739-740 (6th Cir.2006) (Sutton, J., concurring). HI.

For these reasons, we affirm the district court’s sentence as being reasonable. . The district court, in sentencing, should also consider the nature and circumstances of the offense, the characteristics of the defendant, the kinds of sentences available, the sentencing guidelines range, policy statements from the Sentencing Commission, the need to avoid sentencing disparities, and the need to provide restitution to the victims. See 18 U.S.C. § 3552(a)(1), (3)-(7). . The dissent notes that this variance is 36% below the low end of the guidelines range. Dissent Opn. at 811, 817.

Such analysis has no place in a review for reasonableness. There is no mathematical percentage or formula that defines what reasonableness is. Appellate review simply can not be reduced to such cold calculations. It is those very calculations that Booker and its progeny attempted to remove from the federal sentencing process. . While the dissent criticizes the district court for giving Collington “a gift,” this is no reason for this Court to find Collington’s sentence unreasonable.

What may be overlooked in appellate review is the fact that the district court does not issue its sentencing remarks in a vacuum or exclusively with this Court's review in mind. These comments are delivered directly to the defendant, often limes with family members present. We should not begin persecuting the district courts for any niceties they may state in communicating its sentence to the defendant. Such a practice would only lead to depersonalizing an already difficult situation.