UNITED STATES of America, Plaintiff-Appellee, v. Ronald Russell SMITH, Defendant-Appellant, 505 F.3d 463

GRIFFIN, J., delivered the opinion of the court, in which WATSON, D.J., joined. COLE, J. (pp. 472-75), delivered a separate dissenting opinion. OPINION GRIFFIN, Circuit Judge. Defendant Ronald Russell Smith pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). After noting that Smith committed the robbery while on supervised release for two other federal felonies, had 22 prior state convictions, and continued to commit crimes while in custody, the district court sentenced him to a term of 132 months of incarceration.

The district court considered the advisory Sentencing Guideline range of 46 to 57 months, but concluded that a 132-month sentence was warranted because of defendant’s extraordinary criminal history and exceptional danger to public safety. Defendant now appeals his sentence as being unreasonable. For the reasons set forth below, we affirm Smith’s sentence. In doing so, we hold that defendant’s above-the-Guidelines sentence is both procedurally and substantively reasonable, and thus the district court did not abuse its sentencing discretion. I.

The facts leading up to defendant’s guilty plea for bank robbery are undisputed. On January 12, 2005, defendant entered a branch of Suntrust Bank in Cleveland, Tennessee and gave the teller a note that read, “Give me all your 100s, 50s, and 20s.” Defendant was unarmed, not wearing a disguise, and did not make an express threat. The teller complied with the request, gave defendant all the cash from her drawer, and defendant left with $5,132. Surveillance photographs were distributed to the news media, and a U.S. probation officer recognized defendant as one of his supervised releases.

The probation officer reported defendant’s identity to the FBI and warrants were issued for his arrest. Defendant fled the state but was apprehended three days later in Arkansas after he crashed a stolen car into a ditch while fleeing from an Arkansas police officer. After being advised of his rights, defendant admitted to stealing the car, robbing the bank, and stealing the license tag found on the car. A small amount of marijuana was also found in the car. Defendant pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). There was no plea agreement.

The district court held a sentencing hearing on May 2, 2006, during which defendant argued for leniency. He claimed, through his attorney, that he had reached a turning point in his life, and his undisguised and unarmed bank robbery was a cry for help. In response, the United States noted that defendant has committed other crimes while in custody and argued that “I don’t think he needs to be getting out of custody at all.” The United States asked for a sentence “towards the statutory maximum.” In response, the Honorable R.

Allen Edgar stated: Well, the Court has considered this, and the Court has decided that, has considered the guidelines, but this sentence will be outside of the guideline range under the authority of and flexibility granted to this Court and other trial courts pursuant to the Booker case from the United States Supreme Court. This defendant has three prior federal convictions, which I think is a record for me here. And I’ve been doing this 21 years. He has 22 prior state convictions that are in the PSR, and probably many more or several more that he’s already indicated here.

And as [the United States] points out, many of these are not counted in the sentencing guidelines. So, the criminal history score specified by the guidelines of IV does not really and truly represent the defendant’s criminal behavior. The defendant has no stable personal history. He’s 58 years old. And best I can tell from the presentence report, he’s never been employed. He does have a longstanding substance abuse problem that won’t go away. He continues to commit crimes without let-up, both in and out of custody. And he is a threat to public safety and the public needs protection from Mr. Smith unfortunately.

And it does appear that the defendant is just one of those people who needs to be incarcerated. I mean, he, frankly, is just not capable of functioning on the outside. So, pursuant to the Sentencing Reform Act of 1984, it’s the judgment of this Court on Count 1 that the defendant is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 132 months. The district court also ordered defendant to pay $5,132 in restitution, a $100 special assessment, and serve three years of supervised release.

Immediately after pronouncing the sentence, the district court held a hearing regarding revocation of defendant’s supervised release. At the revocation hearing, defendant was accused of violating the terms of his supervised release by committing the bank robbery, leaving the judicial district without permission from his probation officer, and illegally possessing a controlled substance.

Through his attorney, defendant admitted that “there is no question that he violated the conditions of his supervised release.” Nevertheless, he asked for less than the two-year statutory maximum on each of the two violations of his supervised release, and asked that they be served concurrently, but consecutive to the sentence for bank robbery. The court instead sentenced defendant to 24 months on each of the two counts, each to be served consecutively. The 132-month sentence, combined with the two consecutive 24-month sentences, result in a total sentence of 180 months (15 years).

Defendant urges the court to vacate or reduce his sentence and remand for resen-tencing, claiming that his sentence is “wholly unreasonable under the circumstances of this case.” We have held that a reasonableness review, in the sentencing context, involves both procedural and substantive components. United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). Defendant challenges both the procedural and substantive reasonableness of his sentence. II. When reviewing a sentence for reasonableness, an appellate court must consider more than merely the length of the sentence.

Webb, 403 F.3d at 383; see also United States v. Booker, 543 U.S. 220, 245-46, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In order for a sentence to be affirmed as procedurally reasonable, the reviewing court must ensure that the sentencing judge weighed the appropriate considerations in determining the sentence. Specifically, the sentencing judge must have appreciated the advisory nature of the Guidelines, properly calculated the Guidelines range, and considered the factors listed in 18 U.S.C. § 3553(a). United States v. Davis, 458 F.3d 491, 495 (6th Cir.2006).

Defendant argues that the sentence is procedurally unreasonable for two reasons: (1) the district court rejected his argument that his sentence should be in the low range as determined by the Guidelines without providing an adequate explanation, and (2) the district court did not discuss the § 3553(

a) factors, but simply declared that the sentence would be outside of the Guidelines range. Defendant objects to the district court’s explanation of the sentence, stating in his brief that “Defendant argued that his sentence should be at the low end of the Guideline range, but the record is somewhat vague as to the judge’s reasons for rejecting that argument and sentencing the Defendant to a sentence two times that of the range.” Defendant then cites our decision in United States v.

Richardson, 437 F.3d 550, 554 (6th Cir.2006), for the proposition that the district court must consider a defendant’s argument regarding sentencing and explain its reasons for rejecting it. In Richardson, we stated that when “a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant’s argument and that the judge explained the basis for rejecting it.

This assures not only that the defendant can understand the basis for the particular sentence but also that the reviewing court can intelligently determine whether the specific sentence is indeed reasonable.” Richardson, 437 F.3d at 554. The record shows that the district court did consider defendant’s argument that he had reached a turning point in life. After defendant’s attorney suggested that defendant had reached a stage in life in which he decided to accept full responsibility for his actions, the court reminded counsel that defendant had recently committed crimes while in custody.

This dialogue shows that the district court considered defendant’s argument but disagreed with the suggestion that defendant had changed. Defendant further argues that the sentence is procedurally unreasonable because “[i]n the present case, the district court never discussed § 3553(

a) or its factors .... ” However, by enacting 18 U.S.C. § 3553(a), Congress directed district courts to consider the listed factors when determining sentences. This statutory command is an insistence upon deliberation, not a formulaic requirement. When reviewing a district court’s consideration of the § 3553(

a) factors, we have never required “the ‘ritual incantation’ of the factors to affirm a sentence.” United States v. Cage, 458 F.3d 537, 543 (6th Cir.2006) (quoting United States v. Johnson, 403 F.3d 813, 816 (6th Cir.2005)). To hold otherwise when the record shows adequate proof of deliberation would effectively insert an unnecessary insistence upon formalism into the statute. Explicit reference to the § 3553(

a) factors is perhaps the easiest way for the district court to demonstrate that it has considered the factors, but such recitation is not required by statute or by this circuit’s opinions. United States v. Barton, 455 F.3d 649, 659 (6th Cir.2006); United States v. Till, 434 F.3d 880, 887 (6th Cir.2006). As we stated in Till, 434 F.3d at 887: [We do not require] the formality of mentioning the magic words “ § 3553(

a) factors” when imposing identical alternative sentences. We do not require, consistent with [United States v.] Chandler [, 419 F.3d 484 (6th Cir.2005)] and [United States v.] Beck [, 157 Fed.Appx. 784 (6th Cir.2005)], that sentencing judges must offer some measure of reasoning when imposing sentences under the advisory-only Guidelines. However, we decline to require a special incantation that includes the phrase “§ 3553(

a) factors.” “While a district court’s failure to address each argument [of the defendant] head-on will not lead to automatic vacatur, we will vacate a sentence if the ‘context and the record’ do not ‘make clear’ the court’s reasoning. And, of course, a thorough explanation is the most reliable way for a district court to make clear its reasons supporting a given sentence.” United States v. Liou, 491 F.3d 334, 339 n. 4, (6th Cir.2007) (quoting Rita v. United States, 551 U.S. U.S. -, 127 S.Ct. 2456, 2469, 168 L.Ed.2d 203 (2007)) (internal citations omitted). In the present case, although the district court did not expressly reference 18 U.S.C. § 3553(

a) in imposing defendant’s sentence, the record shows that it considered the § 3553(

a) factors and defendant’s arguments. The district court stated that it had reviewed the Guidelines but determined that the appropriate sentence called for an upwards variance from the Guidelines. The district court considered defendant’s criminal history, stating that his three federal convictions are the most that the judge has seen in his 21 years on the bench, and noted that the presentencing report chronicled defendant’s 22 state convictions.

The sentencing judge referred to defendant’s “longstanding substance abuse problem that won’t go away,” and emphasized that defendant “continues to commit crimes without let-up, both in and out of custody.” These factors led the district court to conclude that defendant “is a threat to public safety and the public needs protection from [him].” The district court considered defendant’s sentencing arguments, and the § 3553(

a) factors, such as the nature and circumstances of the offense and the history and characteristics of the offender; the need for the sentence imposed; the kind of sentences available; the sentence range recommended by the Sentencing Guidelines; and the need for restitution. The court also knew the Guidelines range, which the parties agreed was properly calculated, and was aware that the Guidelines were advisory. For these reasons, we conclude that defendant’s sentence is procedurally reasonable. III.

Defendant also argues that his sentence is substantively unreasonable. “A sentence is substantively unreasonable if the district court ‘selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(

a) factors or gives an unreasonable amount of weight to any pertinent factor.’ ” United States v. Husein, 478 F.3d 318, 332 (6th Cir.2007) (citing United States v. Caver, 470 F.3d 220, 248 (6th Cir.2006)). Defendant acknowledges our jurisprudence establishing a presumption of reasonableness to sentences falling within the Guidelines range, but concludes that “[a] presumption of unreasonableness applies in this case given that the district court sentenced Mr.

Smith six to seven years over the appropriate advisory Guideline range, in effect doubling the maximum of that range.” While defendant is correct that the sentence is a substantial deviation from the Guideline range, his assertion that it bears a presumption of unreasonableness is incorrect. Recently, the Supreme Court held that “a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines.” Rita, 127 S.Ct. at 2462.

Nevertheless, while the Supreme Court endorsed a presumption of reasonableness for sentences within the Guidelines range, it did not allow the converse: “The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness. Even the Government concedes that appellate courts may not presume that every variance from the advisory Guidelines is unreasonable.” Rita, 127 S.Ct. at 2467; see also United States v. Collington, 461 F.3d 805, 808 (6th Cir.2006).

In light of Rita, defendant’s argument for a presumption of unreasonableness for sentences outside the Guidelines must be rejected. Defendant further argues that the “sentence in this case is plainly unreasonable” because a sentence within the Guidelines range of 46 to 57 months would have been “approximately 6.2 and 7.2 years less than his actual sentence of 11 years.” Defendant’s argument, while not well articulated, seems to be that his sentence is unreasonable because of its degree of variance from the Guidelines range.

In the post -Booker era, district courts have flexibility to deviate from the Sentencing Guidelines. “Because the Guidelines are now advisory, the district court has the discretion to vary from the Guidelines range in order to comply with the mandate that the sentence be ‘sufficient, but not greater than necessary’ to satisfy the purposes of sentencing set forth in § 3553(a)(2).” United States v. Keller, 498 F.3d 316, 323 (6th Cir.2007) (citing Collington, 461 F.3d at 807-08).

Although the sentencing court may deviate from the Guidelines range, “when the district court independently chooses to deviate from the advisory guidelines range (whether above or below it), we apply a form of proportionality review.” Davis, 458 F.3d at 496. “[T]he farther the judge’s sentence departs from the guidelines sentence ... the more compelling the justification based on factors in

section 3553(

a) must be.” Id. at 496 (quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005)) (internal quotation marks omitted). Modern-day sentencing should be guided by “the principle of proportionality, which requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender.” People v. Milbowm, 435 Mich. 630, 461 N.W.2d 1, 3 (1990). See also Weems v.

United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910), “[I]t is a precept of justice that punishment for [the] crime should be graduated and proportioned to [the] offense.” While the calculations of the Sentencing Guidelines provide a sentence range that Congress and the Sentencing Commission deem reasonable in view of the Guideline factors, for an individualized, outside-the-Guidelines sentence to be reasonable, it must be proportionate to the seriousness of the circumstances of the offense and offender, and “sufficient, but not greater than necessary, to comply with the purposes set forth by [§ 3553(a)(2).]” See e.g.

Davis, 458 F.3d at 496. Here, the district court significantly deviated from the Guidelines range; the Guidelines recommended a sentence of between 46 and 57 months for the bank robbery, but the district court instead sentenced defendant to 132 months. In doing so, the district court expressed its opinion that the highest Criminal History Category of the Sentencing Guidelines fails to “really and truly represent the defendant’s criminal behavior.” The district court thoughtfully considered defendant’s criminal history and noted that he had never encountered a defendant with as many federal convictions as Smith.

Furthermore, the sentencing judge recognized defendant’s continuing danger to the public, emphasizing that as a habitual criminal, defendant “continues to commit crimes without let-up, both in and out of custody.” Defendant’s sentence was a significant variance from the Guidelines, but the district court provided an equally significant justification for the deviation.

Following our de novo review for reasonableness, we conclude that defendant’s outside-the-Guidelines sentence of 132-months incarceration is proportionate to the offense and the offender, and sufficient, but not greater than necessary, to comply with the purposes of § 3553(a)(2). The offense of bank robbery, 18 U.S.C. § 2113(a), is punishable by a maximum term of incarceration of 20 years (240 months). Defendant committed the crime without a weapon and did not make an express threat of violence. However, in the aftermath of the robbery, he fled from Cleveland, Tennessee, to Russellville, Arkansas.

In the process, he stole an automobile, a license plate from another vehicle, fled from the police in a car chase, and eventually crashed his stolen car in a ditch. Following his apprehension, a small amount of marijuana was discovered in the stolen car. At the time of the bank robbery, defendant was on supervised release for federal convictions of wire fraud (8 counts) and conspiracy to commit wire fraud committed while in federal prison Defendant started his known criminal career at the age of 17.

His state court convictions include: joyriding (3/30/66); joyriding (4/29/66); attempt to commit a felony [escape] (7/01/66); forgery (11/04/67); attempt to commit a felony [forged check] (2/23/68); felonious escape from workhouse (5/14/68); larceny from a person (11/12/72); armed robbery (11/18/72); felonious escape from jail (10/12/73); passing forged papers (6/28/77); passing forged papers (7/12/77); burglary (2 counts), larceny, felony passing a forged instrument (6 counts) (9/28/78); escape (11/23/79); reckless driving and violation of the state driving license law (4/29/82); felony obtaining controlled substance (5/12/82); burglary, 1st degree [home invasion] (5/24/82); false pretenses [extorting $500 from another state prison inmate] (11/14/83); bribery and obtaining property under false pretenses [attempt to take $5,000 from an undercover agent posing to be the father-in-law of another state prison inmate] (6/04/84); obtaining property under false pretenses [obtaining $250 from another state prison inmate] (11/06/84); possession of marijuana (7/09/87); and grand larceny (8/29/87).

In addition, defendant has two additional federal convictions: interstate transportation of stolen motor vehicles (10/31/68); and assault on government property [stabbing another inmate] (2/12/70). While the majority of defendant’s crimes did not involve actual violence, it is the non-violent nature of his previous crimes that allowed defendant to gain release from prison. The length of incarceration for his previous crimes (substantially less than his current 132 month sentence), was obviously not sufficient to comply with the purposes of § 3553(a)(2).

Our court has affirmed upward variances from the Sentencing Guidelines in previous decisions. See, e.g., United States v. Ragland, 226 Fed.Appx. 507, 511 (6th Cir.2007); United States v. Williams, 214 Fed.Appx. 552, 556 (6th Cir.2007); United States v. Wells, 473 F.3d 640, 644-45 (6th Cir.2007); and United States v. Barton, 455 F.3d 649, 658-60 (6th Cir. 2006), cert. denied — U.S. —, 127 S.Ct. 748, 166 L.Ed.2d 579 (2006).

In Barton, 455 F.3d at 659-60, we affirmed a variance based on the district court’s reasoning that the defendant was an exceptionally “dangerous person” who “needs to be removed from society.” In Williams, 214 Fed.Appx. at 556, we held that the sentencing judge articulated “compelling reasons” for his substantial upward variance from the Guidelines: Having carefully reviewed the transcripts of the supervised release revocation hearing and both sentencing hearings, we remain unpersuaded that the sentence imposed by the district court is substantively unreasonable.

The district court did not base the sentence on any impermissible factor. Nor has defendant demonstrated that the district court placed unreasonable weight on any one sentencing factor. The district court’s upward variance from the advisory guidelines range is substantial. Yet, in light of defendant’s evident continuing propensity for violence, the variance is premised on compelling reasons.

The district court’s explanation of its reasoning, though succinct, demonstrates appropriate consideration of defendant’s history and characteristics, the need for just punishment, the need for deterrence, the need to protect the public, and the need to provide defendant with correctional treatment. See 18 U.S.C. § 3553(a). (Emphasis added.) In the present case, we agree with the district court’s well-reasoned explanation for its above-the-Guidelines sentence.

Defendant’s extraordinary criminal history and exceptional danger to public safety are substantial and compelling reasons justifying the degree of deviation from the advisory Sentencing Guidelines. Moreover, defendant’s sentence is proportionate to the offense and the offender, and sufficient, but not greater than necessary, to comply with the purposes of § 3553(a)(2). For these reasons, we hold that defendant’s sentence is substantially reasonable, and the district court did not abuse its sentencing discretion. Affirmed. .

The statutory maximum term of incarceration for bank robbery is twenty years. 18 U.S.C. § 2113(a). . Throughout his brief, defendant repeatedly asks us to “remand this case for re-sentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).” The United States Supreme Court issued its opinion in Booker prior to the sentencing hearing — the district judge relied on it by name during the hearing.

Presumably, by asking us to remand in light of Booker, defendant is claiming that the sentence is unreasonable, as opposed to claiming that the district court somehow thought that the sentencing guidelines were mandatory, as they were prior to Booker. . Our circuit had previously endorsed this practice. See, e.g., United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006) ("We now join several sister circuits in crediting sentences properly calculated under the Guidelines with a rebuttable presumption of reasonableness.”). .

The fact that defendant is referring to a sentence of 11 years, when his total sentence is for 15 years, suggests that he is only contesting the sentence for the bank robbery and not the additional sentence of two consecutive additional 24 month terms for the revocations of his supervised release. .The Supreme Court is scheduled to review this issue this Term in Gall v. United States, - U.S. -, 127 S.Ct. 2933, 168 L.Ed.2d 261 (2007). Rita, 127 S.Ct. at 2467. . At the revocation and sentencing proceeding, defense counsel stated that defendant had no objections to the presentence report.

The list of defendant's convictions is taken from the presentence report. The dates of arrest are specified. . 18 U.S.C. § 3553(a)(2) provides: "(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.”