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1 (Slip Opinion) OCTOBER TERM, 2007 SUPREME COURT OF THE UNITED STATES Syllabus KIMBROUGH v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06–6330. Argued October 2, 2007—Decided December 10, 2007 Under the statute criminalizing the manufacture and distribution of cocaine, 21 U. S. C. §841, and the relevant Federal Sentencing Guidelines, a drug trafficker dealing in crack cocaine is subject to the same sentence as one dealing in 100 times more powder cocaine. Petitioner Kimbrough pleaded guilty to four offenses: conspiracy to distribute crack and powder; possession with intent to distribute more than 50grams of crack; possession with intent to distribute powder; and possession of a firearm in furtherance of a drug-trafficking offense. Under the relevant statutes, Kimbrough’s plea subjected him to a minimum prison term of 15 years and a maximum of life. The applicable advisory Guidelines range was 228 to 270 months, or 19 to 22.5 years. The District Court found, however, that a sentence in this range would have been greater than necessary to accomplish the purposes of sentencing set forth in 18 U. S. C. §3553(a). In making that determination, the court relied in part on its view that Kimbrough’s case exemplified the “disproportionate and unjust effect that crack cocaine guidelines have in sentencing.” The court noted that if Kimbrough had possessed only powder cocaine, his Guidelines range would have been far lower: 97 to 106 months. Concluding that the statutory minimum sentence was long enough to accomplish§3553(a)’s objectives, the court sentenced Kimbrough to 15 years, or180 months, in prison. The Fourth Circuit vacated the sentence, finding that a sentence outside the Guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder offenses. Held: 1. Under United States v. Booker, 543 U. S. 220, the cocaine Guidelines, like all other Guidelines, are advisory only, and the Fourth Circuit erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration, but the judge may determine that, in the particular case, a within-Guidelines sentence is “greater than necessary” to serve the objectives of sentencing, §3553(a). In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder offenses. Pp. 5–21. (a) Crack and powder cocaine have the same physiological and psychotropic effects, but are handled very differently for sentencing purposes. The relevant statutes and Guidelines employ a 100-to-1ratio that yields sentences for crack offenses three to six times longer than those for offenses involving equal amounts of powder. Thus, a major supplier of powder may receive a shorter sentence than a low-level dealer who buys powder and converts it to crack. Pp. 5–11. (1) The crack/powder disparity originated in the Anti-Drug Abuse Act of 1986 (1986 Act), which created a two-tiered scheme of five- and ten-year mandatory minimum sentences for drug manufacturing and distribution offenses. Congress apparently adopted the100-to-1 ratio because it believed that crack, a relatively new drug in1986, was significantly more dangerous than powder. Thus, the 1986 Act’s five-year mandatory minimum applies to any defendant accountable for 5 grams of crack or 500 grams of powder, and its ten-year mandatory minimum applies to any defendant accountable for50 grams of crack or 5,000 grams of powder. In developing Guidelines sentences for cocaine offenses, the Sentencing Commission employed the statute’s weight-driven scheme, rather than its usual empirical approach based on past sentencing practices. The statute itself specifies only two quantities of each drug, but the Guidelines used the 100-to-1 ratio to set sentences for a full range of drug quantities. Pp. 6–8. (2) Based on additional research and experience with the 100to-1 ratio, the Commission later determined that the crack/powder differential does not meet the objectives of the Sentencing Reform Act and the 1986 Act. The Commission also found the disparity inconsistent with the 1986 Act’s goal of punishing major drug traffickers more severely than low-level dealers, and furthermore observed that the differential fosters a lack of confidence in the criminal justice system because of a perception that it promotes an unwarranted divergence based on race. Pp. 8–10. (3) The Commission has several times sought to achieve a reduction in the crack/powder ratio. Congress rejected a 1995 amendment to the Guidelines that would have replaced the 100-to-1 ratio with a 1-to-1 ratio, but directed the Commission to propose revision
3 Cite as: 552 U. S. ____ (2007) Syllabus of the ratio under the relevant statutes and Guidelines. Congress took no action after the Commission’s 1997 and 2002 reports recommended changing the ratio. The Commission’s 2007 report again urged Congress to amend the 1986 Act, but the Commission also adopted an ameliorating change in the Guidelines. The modest amendment, which became effective on November 1, 2007, yields sentences for crack offenses between two and five times longer than sentences for equal amounts of powder. The Commission thus noted that it is only a partial remedy to the problems generated by the crack/powder disparity. Pp. 10–11. (b) The federal sentencing statute, as modified by Booker, requires a court to give respectful consideration to the Guidelines, but “permits the court to tailor the sentence in light of other [§3553(a)]concerns as well,” 543 U. S., at 245–246. The Government contends that the Guidelines adopting the 100-to-1 ratio are an exception to this general freedom and offers three arguments in support of its position, each of which this Court rejects. Pp. 11–21.
(1) The Government argues that the 1986 Act itself prohibits the Commission and sentencing courts from disagreeing with the 100-to-1 ratio. This position lacks grounding in the statute, which, by its terms, mandates only maximum and minimum sentences: A person convicted of possession with intent to distribute 5 grams or more of crack must be sentenced to a minimum of 5 years and a maximum of 40. A person with 50 grams or more of crack must be sentenced to a minimum of 10 years and a maximum of life. The statute says nothing about appropriate sentences within these brackets, and this Court declines to read any implicit directive into the congressional silence. See Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 341. Drawing meaning from silence is particularly inappropriate here, because Congress knows how to direct sentencing practices in express terms. See, e.g., 28 U. S. C. §994(h).This cautious reading of the 1986 Act draws force from Neal v. United States, 516 U. S. 284, which involved different methods of calculating lysergic acid diethylamide (LSD) weights: The method applicable in determining statutory minimum sentences combined the weight of the pure drug and its carrier medium, while the one controlling the calculation of Guidelines ranges presumed a lower weight for the carrier medium. This Court rejected the argument that the Guidelines and the statute should be interpreted consistently, with the Guidelines’ presumptive-weight method controlling the mandatory minimum calculation. Were the Government’s current position correct, the Guidelines involved in Neal would be in serious jeopardy. The same reasons alleged to justify reading into the 1986 Act an implicit command to the Commission and sentencing courts to apply the 100 to-1 ratio to all crack quantities could be urged in support of an argument that the 1986 Act requires the Commission to include the full weight of the carrier medium in calculating LSD weights. Yet Neal never questioned the Guidelines’ validity, and in fact endorsed the Commission’s freedom to adopt a new method. If the 1986 Act does not require the Commission to adhere to the Act’s method for determining LSD weights, it does not require the Commission—or, after Booker, sentencing courts—to adhere to the 100-to-1 ratio for crack quantities other than those triggering the statutory mandatory minimum sentences. Pp. 13–16.
ognized that some departures from uniformity were a necessary costof the remedy that decision adopted. And as to crack sentences in particular, possible variations among district courts are constrained by the 1986 Act’s mandatory minimums. Moreover, to the extent that the Government correctly identifies risks of “unwarranted sentence disparities” within the meaning of §3353(a)(6), the proper solution is for district courts to take account of sentencing practices inother courts and the “cliffs” resulting from the statutory mandatoryminimum sentences and weigh these disparities against the other§3553(a) factors and any unwarranted disparities created by the crack/powder ratio itself. Pp. 18–20. (c) Booker rendered the Sentencing Guidelines advisory, 543 U. S., at 245, but preserved a key role for the Sentencing Commission. In the ordinary case, the Commission’s recommendation of a sentencing range will “reflect a rough approximation of sentencesthat might achieve §3553(a)’s objectives.” Rita v. United States, 551 U. S. ___, ___ (slip op., at 11). The sentencing judge, on the other hand, is “in a superior position to find facts and judge their importunder §3553(a) in each particular case.” Gall v. United States, ante, at 13 (internal quotation marks omitted). In light of these discrete institutional strengths, a district court’s decision to vary from the advisory Guidelines may attract greatest respect when the sentencingjudge finds a particular case “outside the ‘heartland’ to which the Commission intends individual Guidelines to apply.” Rita, 551 U. S., at ___ (slip op., at 12). On the other hand, while the Guidelines are no longer binding, closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range “fails properly to reflect §3553(a) considerations” even in a mine-run case. Ibid. The crack cocaine Guidelines, however, present no occasion for elaborative discussion of this matterbecause those Guidelines do not exemplify the Commission’s exercise of its characteristic institutional role. Given the Commission’s departure from its empirical approach in formulating the crack Guidelines and its subsequent criticism of the crack/powder disparity, it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence “greater than necessary” to achieve §3553(a)’s purposes, even in a mine-run case. Pp. 20–21.2. The 180-month sentence imposed on Kimbrough should surviveappellate inspection. The District Court began by properly calculating and considering the advisory Guidelines range. It then addressed the relevant §3553(a) factors, including the Sentencing Commission’s reports criticizing the 100-to-1 ratio. Finally, the court did not purport to establish a ratio of its own, but appropriately framed its final6 KIMBROUGH v. UNITED STATES Syllabus determination in line with §3553(a)’s overarching instruction to “impose a sentence sufficient, but not greater than necessary” to accomplish the sentencing goals advanced in §3553(a)(2). The court thus rested its sentence on the appropriate considerations and “committedno procedural error,” Gall, ante, at 17. Kimbrough’s sentence was 4.5 years below the bottom of the Guidelines range. But in determiningthat 15 years was the appropriate prison term, the District Courtproperly homed in on the particular circumstances of Kimbrough’scase and accorded weight to the Sentencing Commission’s consistentand emphatic position that the crack/powder disparity is at odds with§3553(a). Giving due respect to the District Court’s reasoned appraisal, a reviewing court could not rationally conclude that the 4.5year sentence reduction Kimbrough received qualified as an abuse of discretion. Pp. 21–23. 174 Fed. Appx. 798, reversed and remanded. GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, SOUTER, and BREYER, JJ., joined. SCALIA, J., filed a concurring opinion. THOMAS, J., and ALITO, J., filed dissenting opinions.
_________________ _________________ 1 Cite as: 552 U. S. ____ (2007) Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES No. 06–6330 DERRICK KIMBROUGH, PETITIONER v. UNITED STATESON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT[December 10, 2007] JUSTICE GINSBURG delivered the opinion of the Court. This Court’s remedial opinion in United States v. Booker, 543 U. S. 220, 244 (2005), instructed district courts to read the United States Sentencing Guidelines as “effectively advisory,” id., at 245. In accord with 18 U. S. C. §3553(a), the Guidelines, formerly mandatory,now serve as one factor among several courts must consider in determining an appropriate sentence. Booker further instructed that “reasonableness” is the standard controlling appellate review of the sentences district courts impose.Under the statute criminalizing the manufacture anddistribution of crack cocaine, 21 U. S. C. §841, and therelevant Guidelines prescription, §2D1.1, a drug traffickerdealing in crack cocaine is subject to the same sentence as one dealing in 100 times more powder cocaine. The question here presented is whether, as the Court of Appeals held in this case, “a sentence . . . outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack andpowder cocaine offenses.” 174 Fed. Appx. 798, 799 (CA4
2 KIMBROUGH v. UNITED STATES Opinion of the Court 2006) (per curiam). We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration. The judge may determine, however, that, in the particular case, a within-Guidelines sentence is “greater than necessary” to servethe objectives of sentencing. 18 U. S. C. §3553(a) (2000 ed. and Supp. V). In making that determination, the judgemay consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses. I In September 2004, petitioner Derrick Kimbrough wasindicted in the United States District Court for the Eastern District of Virginia and charged with four offenses: conspiracy to distribute crack and powder cocaine; possession with intent to distribute more than 50 grams of crackcocaine; possession with intent to distribute powder cocaine; and possession of a firearm in furtherance of a drug-trafficking offense. Kimbrough pleaded guilty to all four charges.Under the relevant statutes, Kimbrough’s plea subjected him to an aggregate sentence of 15 years to life in prison: 10 years to life for the three drug offenses, plus a consecutive term of 5 years to life for the firearm offense.1 In —————— 1The statutory range for possession with intent to distribute morethan 50 grams of crack is ten years to life. See 21 U. S. C. §841(b)(1)(A)(iii) (2000 ed. and Supp. V). The same range applies to theconspiracy offense. See §846 (2000 ed.). The statutory range forpossession with intent to distribute powder cocaine is 0 to 20 years.See §841(b)(1)(C) (Supp. V). Finally, the statutory range for possession of a firearm in furtherance of a drug-trafficking offense is five years to life. See 18 U. S. C. §924(c)(1)(A)(i). The sentences for the three drugcrimes may run concurrently, see §3584(a), but the sentence for the firearm offense must be consecutive, see §924(c)(1)(A).
3 Cite as: 552 U. S. ____ (2007) Opinion of the Court order to determine the appropriate sentence within this statutory range, the District Court first calculated Kimbrough’s sentence under the advisory Sentencing Guidelines.2 Kimbrough’s guilty plea acknowledged thathe was accountable for 56 grams of crack cocaine and 92.1grams of powder cocaine. This quantity of drugs yielded abase offense level of 32 for the three drug charges. See United States Sentencing Commission, Guidelines Manual §2D1.1(c) (Nov. 2004) (USSG). Finding that Kimbrough,by asserting sole culpability for the crime, had testified falsely at his codefendant’s trial, the District Court increased his offense level to 34. See §3C1.1. In accord with the presentence report, the court determined that Kimbrough’s criminal history category was II. An offense level of 34 and a criminal history category of II yielded aGuidelines range of 168 to 210 months for the three drug charges. See id., ch. 5, pt. A, Sentencing Table. The Guidelines sentence for the firearm offense was the statutory minimum, 60 months. See USSG §2K2.4(b). Kimbrough’s final advisory Guidelines range was thus 228to 270 months, or 19 to 22.5 years. A sentence in this range, in the District Court’s judgment, would have been “greater than necessary” to accomplish the purposes of sentencing set forth in 18 U. S. C.§3553(a). App. 72. As required by §3553(a), the court took into account the “nature and circumstances” of the offense and Kimbrough’s “history and characteristics.” Id., at 72– 73. The court also commented that the case exemplifiedthe “disproportionate and unjust effect that crack cocaine guidelines have in sentencing.” Id., at 72. In this regard,the court contrasted Kimbrough’s Guidelines range of 228 —————— 2Kimbrough was sentenced in April 2005, three months after our decision in Booker v. United States, 543 U. S. 220 (2005), rendered the Guidelines advisory. The District Court employed the version of the Guidelines effective November 1, 2004.
4 KIMBROUGH v. UNITED STATES Opinion of the Court to 270 months with the range that would have applied had he been accountable for an equivalent amount of powdercocaine: 97 to 106 months, inclusive of the 5-year mandatory minimum for the firearm charge, see USSG §2D1.1(c); id., ch. 5, pt. A, Sentencing Table. Concluding that the statutory minimum sentence was “clearly long enough” to accomplish the objectives listed in §3553(a), the court sentenced Kimbrough to 15 years, or 180 months, in prison plus 5 years of supervised release. App. 74–75.3 In an unpublished per curiam opinion, the Fourth Circuit vacated the sentence. Under Circuit precedent, theCourt of Appeals observed, a sentence “outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses.” 174 Fed. Appx., at 799 (citing United States v. Eura, 440 F. 3d 625, 633–634 (CA4 2006)).We granted certiorari, 551 U. S. ___ (2007), to determine whether the crack/powder disparity adopted in the United States Sentencing Guidelines has been rendered “advisory” by our decision in Booker.4 We begin with some background on the different treatment of crack and powder cocaine under the federal sentencing laws. Crack and powder cocaine are two forms of the same drug. Powder cocaine, or cocaine hydrochloride, is generally inhaled through the nose; it may also be mixed with water and injected. See United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 5, 12 (Feb. 1995), available at http://www.ussc.gov/crack/exec.htm (hereinafter 1995 Report). (All Internet materials as visited Dec. 7, 2007, and included in Clerk of Court’s case file.) Crack cocaine, a type of cocaine base, is formed by dissolving powder cocaine and baking soda in boiling water. Id., at 14. The resulting solid is divided into single-dose “rocks” that users smoke. Ibid. The active ingredient in powder and crack cocaine is the same. Id., at 9. The two forms of the drug also have the same physiological and psychotropic effects, but smoking crack cocaine allows the body to absorb the drug much faster than inhaling powder cocaine, and thus produces a shorter, more intense high. Id., at 15–19.5
Although chemically similar, crack and powder cocaine are handled very differently for sentencing purposes. The 100-to-1 ratio yields sentences for crack offenses three to six times longer than those for powder offenses involving equal amounts of drugs. See United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy iv (May 2002), available at http://www.ussc.gov/r_congress/02crack/2002crackrpt.pdf (hereinafter 2002 Report).6 This disparity means that a major supplier of powder cocaine may receive a shorter sentence than a low-level dealer who buys powder from the supplier but then converts it to crack. See 1995 Report 193–194.
A The crack/powder disparity originated in the Anti-Drug Abuse Act of 1986 (1986 Act), 100 Stat. 3207. The 1986 Act created a two-tiered scheme of five- and ten-year mandatory minimum sentences for drug manufacturing and distribution offenses. Congress sought “to link the ten-year mandatory minimum trafficking prison term to major drug dealers and to link the five-year minimum term to serious traffickers.” 1995 Report 119. The 1986 Act uses the weight of the drugs involved in the offense as the sole proxy to identify “major” and “serious” dealers. For example, any defendant responsible for 100 grams of heroin is subject to the five-year mandatory minimum, see 21 U. S. C. §841(b)(1)(B)(i) (2000 ed. and Supp V), and any defendant responsible for 1,000 grams of heroin is subject to the ten-year mandatory minimum, see §841(b)(1)(A)(i). Crack cocaine was a relatively new drug when the 1986Act was signed into law, but it was already a matter of great public concern: “Drug abuse in general, and crack cocaine in particular, had become in public opinion and in members’ minds a problem of overwhelming dimensions.” 1995 Report 121. Congress apparently believed that crack was significantly more dangerous than powder cocaine in that: (1) crack was highly addictive; (2) crack users and dealers were more likely to be violent than users and dealers of other drugs; (3) crack was more harmful to users than powder, particularly for children who had been exposed by their mothers’ drug use during pregnancy; (4) crack use was especially prevalent among teenagers; and (5) crack’s potency and low cost were making it increasingly popular. See 2002 Report 90.Based on these assumptions, the 1986 Act adopted a “100-to-1 ratio” that treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine. The Act’s five-year mandatory minimum applies to any defendant accountable for 5 grams of crack or 500 grams of powder, 21 U. S. C. §841(b)(1)(B)(ii), (iii); its ten-year mandatory minimum applies to any defendant accountable for 50grams of crack or 5,000 grams of powder, §841(b)(1)(A)(ii),(iii).While Congress was considering adoption of the 1986 Act, the Sentencing Commission was engaged in formulating the Sentencing Guidelines.7 In the main, the Commission developed Guidelines sentences using an empirical approach based on data about past sentencing practices, including 10,000 pre sentence investigation reports. See USSG §1A.1, intro. comment. , pt. A, ¶3. The Commission “modified and adjust[ed] past practice in the interests of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like.” Rita v. United States, 551 U. S. ___, ___ (2007) (slip op., at 10).The Commission did not use this empirical approach in developing the Guidelines sentences for drug-trafficking offenses. Instead, it employed the 1986 Act’s weight-driven scheme. The Guidelines use a drug quantity table based on drug type and weight to set base offense levels for drug trafficking offenses. See USSG §2D1.1(c). In setting offense levels for crack and powder cocaine, the Commission, in line with the 1986 Act, adopted the 100-to-1 ratio. The statute itself specifies only two quantities of each drug, but the Guidelines “go further and set sentences for the full range of possible drug quantities using the same 100-to-1 quantity ratio.” 1995 Report 1. The Guidelines’ drug quantity table sets base offense levels ranging from 12, for offenses involving less than 250milligrams of crack (or 25 grams of powder), to 38, for offenses involving more than 1.5 kilograms of crack (or 150 kilograms of powder). USSG §2D1.1(c).8
B Although the Commission immediately used the 100-to-1 ratio to define base offense levels for all crack and powder offenses, it later determined that the crack/powder sentencing disparity is generally unwarranted. Based on additional research and experience with the 100-to-1 ratio, the Commission concluded that the disparity “fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act.” 2002 Report 91. In a series of reports, the Commission identified three problems with the crack/powder disparity. First, the Commission reported, the 100-to-1 ratio rested on assumptions about “the relative harmfulness of the twodrugs and the relative prevalence of certain harmful conduct associated with their use and distribution that more recent research and data no longer support.” Ibid.; see United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 8 (May 2007), available at http://www.ussc.gov/r_congress/cocaine2007.pdf (hereinafter 2007 Report) (ratio Congressembedded in the statute far “overstate[s]” both “the relative harmfulness” of crack cocaine, and the “seriousness of most crack cocaine offenses”). For example, the Commission found that crack is associated with “significantly less trafficking-related violence . . . than previously assumed.”2002 Report 100. It also observed that “the negative effects of prenatal crack cocaine exposure are identical to the negative effects of prenatal powder cocaine exposure.” Id., at 94. The Commission furthermore noted that “the epidemic of crack cocaine use by youth never materialized to the extent feared.” Id., at 96.
Second, the Commission concluded that the crack/powder disparity is inconsistent with the 1986 Act’s goal of punishing major drug traffickers more severely than low-level dealers. Drug importers and major traffickers generally deal in powder cocaine, which is then converted into crack by street-level sellers. See 1995 Report 66–67. But the 100-to-1 ratio can lead to the “anomalous” result that “retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced.” Id., at 174. Finally, the Commission stated that the crack/powder sentencing differential “fosters disrespect for and lack of confidence in the criminal justice system” because of a “widely-held perception” that it “promotes unwarranted disparity based on race.” 2002 Report 103. Approximately85 percent of defendants convicted of crack offenses in federal court are black; thus the severe sentences required by the 100-to-1 ratio are imposed “primarily upon black offenders.” Ibid.Despite these observations, the Commission’s most recent reports do not urge identical treatment of crack and powder cocaine. In the Commission’s view, “some differential in the quantity-based penalties” for the two drugs is warranted, id., at 102, because crack is more addictive than powder, crack offenses are more likely to involve weapons or bodily injury, and crack distribution is associated with higher levels of crime, see id., at 93–94, 101–
102. But the 100-to-1 crack/powder ratio, the Commission concluded, significantly overstates the differences between the two forms of the drug. Accordingly, the Commission recommended that the ratio be “substantially” reduced. Id., at viii. C The Commission has several times sought to achieve a reduction in the crack/powder ratio. In 1995, it proposed amendments to the Guidelines that would have replaced the 100-to-1 ratio with a 1-to-1 ratio. Complementing that change, the Commission would have installed special enhancements for trafficking offenses involving weapons or bodily injury. See Amendments to the Sentencing Guidelines for United States Courts, 60 Fed. Reg. 25075–25077 (1995). Congress, acting pursuant to 28 U. S. C. §994(p),9 rejected the amendments. See Pub. L. 104–38, §1, 109 Stat. 334. Simultaneously, however, Congress directed the Commission to “propose revision of the drug quantity ratio of crack cocaine to powder cocaine under the relevant statutes and guidelines.” §2(a)(2), id., at 335. In response to this directive, the Commission issued reports in 1997 and 2002 recommending that Congress change the 100-to-1 ratio prescribed in the 1986 Act. The 1997 Report proposed a 5-to-1 ratio. See United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 2 (Apr. 1997),http://www.ussc.gov/r_congress/newcrack.pdf. The 2002 Report recommended lowering the ratio “at least” to 20 to1. 2002 Report viii. Neither proposal prompted congressional action. The Commission’s most recent report, issued in 2007, again urged Congress to amend the 1986 Act to reduce the 100-to-1 ratio. This time, however, the Commission did not simply await congressional action. Instead, the Commission adopted an ameliorating change in the Guidelines. See 2007 Report 9. The alteration, which became effective on November 1, 2007, reduces the base offense level associated with each quantity of crack by two levels. See Amendments to the Sentencing Guidelines for United States Courts, 72 Fed. Reg. 28571–28572 (2007).10 This modest amendment yields sentences for crack offenses between two and five times longer than sentences for equal amounts of powder. See ibid.11 Describing the amendment as “only . . . a partial remedy” for the problems generated by the crack/powder disparity, the Commission noted that “[a]ny comprehensive solution requires appropriate legislative action by Congress.” 2007 Report 10.
III With this history of the crack/powder sentencing ratio in mind, we next consider the status of the Guidelines tied to the ratio after our decision in United States v. Booker, 543U. S. 220 (2005). In Booker, the Court held that the mandatory Sentencing Guidelines system violated the Sixth Amendment. See id., at 226–227. The Booker remedial opinion determined that the appropriate cure was to sever and excise the provision of the statute that rendered the Guidelines mandatory, 18 U. S. C. §3553(b)(1) (2000 ed., Supp. IV).12 This modification of the federal sentencing statute, we explained, “makes the Guidelines effectively advisory.” 543 U. S., at 245.
The statute, as modified by Booker, contains an over-arching provision instructing district courts to “impose a sentence sufficient, but not greater than necessary” to accomplish the goals of sentencing, including “to reflect the seriousness of the offense,” “to promote respect for the law,” “to provide just punishment for the offense,” “to afford adequate deterrence to criminal conduct,” and “to protect the public from further crimes of the defendant.”18 U. S. C. §3553(a) (2000 ed. and Supp. V). The statute further provides that, in determining the appropriate entence, the court should consider a number of factors, including “the nature and circumstances of the offense,” “the history and characteristics of the defendant,” “the sentencing range established” by the Guidelines, “any pertinent policy statement” issued by the Sentencing Commission pursuant to its statutory authority, and “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” Ibid. In sum, while the statute still requires a court to give respectful consideration to the Guidelines, see Gall v. United States, ante, at 7, 11, Booker “permits the court to tailor the sentence in light of other statutory concerns as well,” 543 U. S., at 245–246. The Government acknowledges that the Guidelines “are now advisory” and that, as a general matter, “courts may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines.” Brief for United States 16; cf. Rita v. United States, 551 U. S. ___, ___ (2007) (slip op., at 12) (a district court may consider arguments that “the Guidelines sentence itself fails properly to reflect §3553(a) considerations”). But the Government contends that the Guidelines adopting the 100-to-1 ratio are an exception to the “general freedom that sentencing courts have to apply the [§3553(a)] factors.” Brief for United States 16. That is so, according to the Government, because the ratio is a “specific policy determination that Congress has directed sentencing courts to observe.” Id., at 25. The Government offers three arguments in support of this position. We consider each in turn. A As its first and most heavily pressed argument, the Government urges that the 1986 Act itself prohibits the Sentencing Commission and sentencing courts from disagreeing with the 100-to-1 ratio.13 The Government acknowledges that the “Congress did not expressly direct the Sentencing Commission to incorporate the 100:1 ratio in the Guidelines.” Brief for United States 33 (brackets and internal quotation marks omitted). Nevertheless, it asserts that the Act “[i]mplicit[ly]” requires the Commission and sentencing courts to apply the 100-to-1 ratio. Id., at32. Any deviation, the Government urges, would be “logically incoherent” when combined with mandatory minimum sentences based on the 100-to-1 ratio. Id., at 33.
This argument encounters a formidable obstacle: It lacks grounding in the text of the 1986 Act. The statute, by its terms, mandates only maximum and minimum sentences: A person convicted of possession with intent to distribute 5 grams or more of crack cocaine must be sentenced to a minimum of 5 years and the maximum term is 40 years. A person with 50 grams or more of crack cocaine must be sentenced to a minimum of 10 years and the maximum term is life. The statute says nothing about the appropriate sentences within these brackets, and we decline to read any implicit directive into that congressional silence. See Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 341 (2005) (“We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply . . . .”).Drawing meaning from silence is particularly inappropriate here, for Congress has shown that it knows how to direct sentencing practices in express terms. For example, Congress has specifically required the Sentencing Commission to set Guidelines sentences for serious recidivist offenders “at or near” the statutory maximum. 28 U. S. C. §994(h). See also §994(i) (“The Commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment” for specified categories of offenders.). Our cautious reading of the 1986 Act draws force from Neal v. United States, 516 U. S. 284 (1996). That case involved different methods of calculating lysergic aciddiethylamide (LSD) weights, one applicable in determining statutory minimum sentences, the other controlling the calculation of Guidelines ranges. The 1986 Act sets mandatory minimum sentences based on the weight of “a mixture or substance containing a detectable amount” of LSD. 21 U. S. C. §841(b)(1)(A)(v), (B)(v). Prior to Neal, we had interpreted that language to include the weight of the15 Cite as: 552 U. S. ____ (2007) Opinion of the Court carrier medium (usually blotter paper) on which LSD is absorbed even though the carrier is usually far heavier than the LSD itself. See Chapman v. United States, 500 U. S. 453, 468 (1991). Until 1993, the Sentencing Commission had interpreted the relevant Guidelines in the same way. That year, however, the Commission changed its approach and “instructed courts to give each dose of LSD on a carrier medium a constructive or presumed weight of 0.4 milligrams.” Neal, 516 U. S., at 287 (citing USSG §2D1.1(c), n. (H) (Nov. 1995)). The Commission’s change significantly lowered the Guidelines range applicable to most LSD offenses, but defendants remained subject to higher statutory minimum sentences based on the combined weight of the pure drug and its carrier medium. The defendant in Neal argued that the revised Guidelines and the statute should be interpreted consistently and that the “presumptive-weight method of the Guidelines should also control the mandatory minimum calculation.” 516 U. S., at 287. We rejected that argument, emphasizing that the Commission had not purported to interpret the statute and could not in any event overrule our decision in Chapman. See 516 U. S., at 293– 295. If the Government’s current position were correct, then the Guidelines involved in Neal would be in serious jeopardy. We have just recounted the reasons alleged tojustify reading into the 1986 Act an implicit command to the Commission and sentencing courts to apply the 100-to-1 ratio to all quantities of crack cocaine. Those same reasons could be urged in support of an argumentthat the 1986 Act requires the Commission to include the full weight of the carrier medium in calculating the weight of LSD for Guidelines purposes. Yet our opinion in Neal never questioned the validity of the altered Guidelines. To the contrary, we stated: “Entrusted within its sphere to make policy judgments, the Commission may
16 KIMBROUGH v. UNITED STATES Opinion of the Court abandon its old methods in favor of what it has deemed a more desirable ‘approach’ to calculating LSD quantities.” Id., at 295.14 If the 1986 Act does not require the Commission to adhere to the Act’s method for determining LSD weights, it does not require the Commission—or, after Booker, sentencing courts—to adhere to the 100-to-1 ratio for crack cocaine quantities other than those that trigger the statutory mandatory minimum sentences. B In addition to the 1986 Act, the Government relies on Congress’ disapproval of the Guidelines amendment that the Sentencing Commission proposed in 1995. Congress“not only disapproved of the 1:1 ratio,” the Government urges; it also made clear “that the 1986 Act required the Commission (and sentencing courts) to take drug quantities into account, and to do so in a manner that respects the 100:1 ratio.” Brief for United States 35. It is true that Congress rejected the Commission’s 1995 proposal to place a 1-to-1 ratio in the Guidelines, and that Congress also expressed the view that “the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in alike quantity of powder cocaine.” Pub. L. 104–38, §2(a)(1)(A), 109 Stat. 334. But nothing in Congress’ 1995 reaction to the Commission-proposed 1-to-1 ratio suggested that crack sentences must exceed powder sentences by a ratio of 100 to 1. To the contrary, Congress’ 1995 action required the Commission to recommend a “revision of the drug quantity ratio of crack cocaine to powder cocaine.” §2(a)(2), id., at 335. The Government emphasizes that Congress required the Commission to propose changes to the 100-to-1 ratio in both the 1986 Act and the Guidelines. This requirement, the Government contends, implicitly foreclosed any deviation from the 100-to-1 ratio in the Guidelines (or by sentencing courts) in the absence of a corresponding change in the statute. See Brief for United States 35–36. But it does not follow as the night follows the day that, by calling for recommendations to change the statute, Congress meant to bar any Guidelines alteration in advance of congressional action. The more likely reading is that Congress sought proposals to amend both the statute and the Guidelines because the Commission’s criticisms of the 100-to-1 ratio, see Part II–B, supra, concerned the exorbitance of the crack/powder disparity in both contexts. Moreover, as a result of the 2007 amendment, see supra, at 10–11, the Guidelines now advance a crack/powder ratio that varies (at different offense levels) between 25 to 1 and 80 to 1. See Amendments to the Sentencing Guidelines for United States Courts, 72 Fed. Reg. 28571–28572.Adopting the Government’s analysis, the amended Guidelines would conflict with Congress’ 1995 action, and with the 1986 Act, because the current Guidelines ratios deviate from the 100-to-1 statutory ratio. Congress, however, did not disapprove or modify the Commission-initiated2007 amendment. Ordinarily, we resist reading congressional intent into congressional inaction. See Bob Jones
18 KIMBROUGH v. UNITED STATES Opinion of the Court Univ. v. United States, 461 U. S. 574, 600 (1983). But in this case, Congress failed to act on a proposed amendment to the Guidelines in a high-profile area in which it had previously exercised its disapproval authority under 28U. S. C. §994(p). If nothing else, this tacit acceptance of the 2007 amendment undermines the Government’s position, which is itself based on implications drawn from congressional silence. C Finally, the Government argues that if district courts are free to deviate from the Guidelines based on disagreements with the crack/powder ratio, unwarranted disparities of two kinds will ensue. See 18 U. S. C. §3553(a)(6) (sentencing courts shall consider “the need to avoid unwarranted sentence disparities”). First, because sentencing courts remain bound by the mandatory minimum sentences prescribed in the 1986 Act, deviations from the100-to-1 ratio could result in sentencing “cliffs” around quantities that trigger the mandatory minimums. Brief for United States 33 (internal quotation marks omitted). For example, a district court could grant a sizable downward variance to a defendant convicted of distributing 49grams of crack but would be required by the statutory minimum to impose a much higher sentence on a defendant responsible for only 1 additional gram. Second, the Government maintains that, if district courts are permitted to vary from the Guidelines based on their disagreement with the crack/powder disparity, “defendants with identical real conduct will receive markedly different sentences, depending on nothing more than the particular judge drawn for sentencing.” Id., at 40. Neither of these arguments persuades us to hold the rack/powder ratio untouchable by sentencing courts. As to the first, the LSD Guidelines we approved in Neal create a similar risk of sentencing “cliffs.” An offender
19 Cite as: 552 U. S. ____ (2007) Opinion of the Court who possesses LSD on a carrier medium weighing ten grams is subject to the ten-year mandatory minimum, see21 U. S. C. §841(b)(1)(A)(v), but an offender whose carrier medium weighs slightly less may receive a considerably lower sentence based on the Guidelines’ presumptive-weight methodology. Concerning the second disparity, it is unquestioned that uniformity remains an important goal of sentencing. As we explained in Booker, however, advisory Guidelines combined with appellate review for reasonableness and ongoing revision of the Guidelines in response to sentencing practices will help to “avoid excessive sentencing disparities.” 543 U. S., at 264. These measures will not eliminate variations between district courts, but our opinion in Booker recognized that some departures from uniformity were a necessary cost of the remedy we adopted. See id., at 263 (“We cannot and do not claim that use of a ‘reasonableness’ standard will provide the uniformity that Congress originally sought to secure [through mandatory Guidelines].”). And as to crack cocaine sentences in particular, we note a congressional control on disparities: possible variations among district courts are constrained by the mandatory minimums Congress prescribed in the 1986 Act.15
Moreover, to the extent that the Government correctly identifies risks of “unwarranted sentence disparities” within the meaning of 18 U. S. C. §3353(a)(6), the proper solution is not to treat the crack/powder ratio as mandatory. Section 3553(a)(6) directs district courts to consider the need to avoid unwarranted disparities—along with other §3553(a) factors—when imposing sentences. See Gall, ante, at 11, n. 6, 16. Under this instruction, district courts must take account of sentencing practices in other courts and the “cliffs” resulting from the statutory mandatory minimum sentences. To reach an appropriate sentence, these disparities must be weighed against the other§3553(a) factors and any unwarranted disparity created by the crack/powder ratio itself.
IV While rendering the Sentencing Guidelines advisory, United States v. Booker, 543 U. S. 220, 245 (2005), we have nevertheless preserved a key role for the Sentencing Commission. As explained in Rita and Gall, district courts must treat the Guidelines as the “starting point and the initial benchmark,” Gall v. United States, ante, at 11. Congress established the Commission to formulate and constantly refine national sentencing standards. See Rita v. United States, 551 U. S. ___, ___–___ (2007) (slip op., at 9–11). Carrying out its charge, the Commission fills an important institutional role: It has the capacity courts lack to “base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise.” United States v. Pruitt, 502 F. 3d 1154, 1171 (CA10 2007) (McConnell, J., concurring); see supra, at 7.
We have accordingly recognized that, in the ordinary case, the Commission’s recommendation of a sentencing range will “reflect a rough approximation of sentences that might achieve §3553(a)’s objectives.” Rita, 551 U. S., at ___ (slip op., at 11). The sentencing judge, on the other hand, has “greater familiarity with . . . the individual case and the individual defendant before him than the Commission or the appeals court.” Id., at ___ (slip op., at 18). He is therefore “in a superior position to find facts and judge their import under §3353(a)” in each particular case. Gall, ante, at 13 (internal quotation marks omitted). In light of these discrete institutional strengths, a district court’s decision to vary from the advisory Guidelines mayattract greatest respect when the sentencing judge finds a particular case “outside the ‘heartland’ to which the Commission intends individual Guidelines to apply.” Rita, 551 U. S., at ___ (slip op., at 12). On the other hand, while the Guidelines are no longer binding, closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range “fails properly to reflect §3553(a) considerations” even in a mine-run case. Ibid. Cf. Tr. of Oral Arg. in Gall
v. United States, O. T. 2007, No. 06-7949, pp. 38–39. The crack cocaine Guidelines, however, present no occasion for elaborative discussion of this matter because those Guidelines do not exemplify the Commission’s exercise of its characteristic institutional role. In formulating Guidelines ranges for crack cocaine offenses, as we earlier noted, the Commission looked to the mandatory minimum sentences set in the 1986 Act, and did not take account of “empirical data and national experience.” See Pruitt, 502 F. 3d, at 1171 (McConnell, J., concurring). Indeed, the Commission itself has reported that the crack/powder disparity produces disproportionately harsh sanctions, i.e., sentences for crack cocaine offenses “greater than necessary” in light of the purposes of sentencing set forth in §3553(a). See supra, at 8–9. Given all this, it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence “greater than necessary” to achieve §3553(a)’s purposes, even in a mine run case. V Taking account of the foregoing discussion in appraising the District Court’s disposition in this case, we conclude that the 180-month sentence imposed on Kimbrough should survive appellate inspection. The District Court began by properly calculating and considering the advisory Guidelines range. It then addressed the relevant §3553(a) factors. First, the court considered “the nature and circumstances” of the crime, see 18 U. S. C. §3553(a)(1), which was an unremarkable drug-trafficking offense. App. 72–73 (“[T]his defendant and another defendant were caught sitting in a car with some crack cocaine and powder by two police officers—that’s the sum and substance of it—[and they also had] a firearm.”). Second, the court considered Kimbrough’s “history and characteristics.” §3553(a)(1). The court noted that Kimbrough had no prior felony convictions, that he had served in combat during Operation Desert Storm and received an honorable discharge from the Marine Corps, and that he had a steady history of employment. Furthermore, the court alluded to the Sentencing Commission’s reports criticizing the 100-to-1 ratio, cf. §3553(a)(5) (Supp. V), noting that the Commission “recognizes that crack cocaine has not caused the damage that the Justice Department alleges it has.” App. 72. Comparing the Guidelines range to the range that would have applied if Kimbrough had possessed an equal amount of powder, the court suggested that the 100-to-1 ratio itself created an unwarranted disparity within the meaning of §3553(a). Finally, the court did not purport to establish a ratio of its own. Rather, it appropriately framed its final determination in line with §3553(a)’s overarching instruction to “impose a sentence sufficient, but not greater than necessary” to accomplish the sentencing goals advanced in §3553(a)(2). See supra, at 12. Concluding that “the crack cocaine guidelines [drove] the offense level to a point higher than is necessary to do justice in this case,” App. 72, the District Court thus rested its sentence on the appropriate considerations and “committed no procedural error,” Gall v. United States, ante, at 17. The ultimate question in Kimbrough’s case is “whetherthe sentence was reasonable—i.e., whether the District Judge abused his discretion in determining that the §3553(a) factors supported a sentence of [15 years] and justified a substantial deviation from the Guidelines range.” Ibid. The sentence the District Court imposed on Kimbrough was 4.5 years below the bottom of the Guidelines range. But in determining that 15 years was the appropriate prison term, the District Court properly homed in on the particular circumstances of Kimbrough’s case and accorded weight to the Sentencing Commission’s consistent and emphatic position that the crack/powder disparity is at odds with §3553(a). See Part II–B, supra. Indeed, aside from its claim that the 100-to-1 ratio is mandatory, the Government did not attack the District Court’s downward variance as unsupported by §3553(a).Giving due respect to the District Court’s reasoned appraisal, a reviewing court could not rationally conclude that the 4.5-year sentence reduction Kimbrough received qualified as an abuse of discretion. See Gall, ante, at 20– 21; Rita v. United States, 551 U. S. ___, ___ (2007) (slip op., at 19–20). For the reasons stated, the judgment of the United States Court of Appeals for the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
SUPREME COURT OF THE UNITED STATES Syllabus WATSON v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 06–571. Argued October 9, 2007—Decided December 10, 2007 After trading a controlled substance for a pistol, petitioner Watson was indicted for, inter alia, violating 18 U. S. C. §924(c)(1)(A), which sets a mandatory minimum sentence, depending on the facts, for a defendant who, “during and in relation to any . . . drug trafficking crime[,] . . . uses . . . a firearm.” The statute does not define “uses,” but this Court has spoken to it twice. In holding that “a criminal who trades his firearm for drugs ‘uses’ it . . . within the meaning of §924(c)(1),” Smith v. United States, 508 U. S. 223, 241, the Court rested primarily on the “ordinary or natural meaning” of the verb in context, id., at 228, understanding its common range as going beyond employment as a weapon to trading a weapon for drugs, id., at 230. Later, in holding that merely possessing a firearm kept near the scene of drug trafficking is not “use” under §924(c)(1), the Court, in Bailey v. United States, 516 U. S. 137, again looked to “ordinary or natural” meaning, id., at 145, deciding that “§924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense,” id., at 143. Watson pleaded guilty but reserved the right to challenge the factual basis for a §924(c)(1)(A) conviction and sentence. The Fifth Circuit affirmed on its precedent foreclosing any argument that Watson had not “used” a firearm. Held: A person does not “use” a firearm under 18 U. S. C. §924(c)(1)(A)when he receives it in trade for drugs. Pp. 4–9. (a) The Government’s position lacks authority in either precedent or regular English. Neither Smith, which addressed only the trader who swaps his gun for drugs, not the trading partner who ends up with the gun, nor Bailey, which ruled that a gun must be made use of actively to satisfy §924(c)(1)(A), decides this case. With no statutory
2 WATSON v. UNITED STATES Syllabus definition, the meaning of “uses” has to turn on “everyday meaning” revealed in phraseology that strikes the ear as “both reasonable and normal.” Smith, supra, 228, 230. When Watson handed over the drugs for the pistol, the officer “used” the pistol to get the drugs, but regular speech would not say that Watson himself used the pistol in the trade. Pp. 4–5. (b) The Government’s first effort to trump ordinary English is rejected. Noting that §924(d)(1) authorizes seizure and forfeiture of firearms “intended to be used in” certain crimes, the Government infers that since some of those offenses involve receipt of a firearm, “use” necessarily includes receipt of a gun even in a barter transaction. The Government’s reliance on Smith for the proposition that the term must be given the same meaning in both subsections over-reads Smith. The common verb “use” is not at odds in the two subsections but speaks to different issues in different voices and at different levels of specificity. Section 924(d)(1) indicates that a gun can be “used” in a receipt crime, but does not say whether both parties to a transfer use the gun, or only one, or which one; however, §924(c)(1)(A) requires just such a specific identification. Pp. 5–7. (c) Nor is the Government’s second effort to trump ordinary English persuasive. It claims that failing to treat receipt in trade as“ use” would create unacceptable asymmetry with Smith; i.e., it would be strange to penalize one side of a gun-for-drugs exchange but not the other. The problem is not with Smith, however, but with the limited malleability of the language it construed, and policy-driven symmetry cannot turn “receipt-in-trade” into “use.” Whatever the tension between the prior result and the outcome here, law depends on respect for language and would be served better by statutory amendment than by racking statutory language to cover a policy it fails to reach. Pp. 8–9. 191 Fed. Appx. 326, reversed and remanded. SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. GINSBURG, J., filed an opinion concurring in the judgment.
SUPREME COURT OF THE UNITED STATES No. 06–571 MICHAEL A. WATSON, PETITIONER v. UNITED STATESON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT[December 10, 2007] JUSTICE SOUTER delivered the opinion of the Court. The question is whether a person who trades his drugs for a gun “uses” a firearm “during and in relation to . . . [a] drug trafficking crime” within the meaning of 18 U. S. C. §924(c)(1)(A).1 We hold that he does not. I A Section 924(c)(1)(A) sets a mandatory minimum sentence, depending on the facts, for a defendant who, “during and in relation to any crime of violence or drug trafficking crime[,] . . . uses or carries a firearm.”2 The statute leaves the term “uses” undefined, though we have spoken to it twice before. Smith v. United States, 508 U. S. 223 (1993) raised the converse of today’s question, and held that “a criminal who trades his firearm for drugs ‘uses’ it during and in relation to a drug trafficking offense within the meaning of §924(c)(1).” Id., at 241. We rested primarily on the “ordinary or natural meaning” of the verb in context, id., at 228, and understood its common range as going beyond employment as a weapon: “it is both reasonable and normal to say that petitioner ‘used’ his MAC–10 in his drug trafficking offense by trading it for cocaine,” id., at 230. Two years later, the issue in Bailey v. United States, 516 U. S. 137 (1995) was whether possessing a firearm kept near the scene of drug trafficking is “use” under §924(c)(1).We looked again to “ordinary or natural” meaning, id., at 145, and decided that mere possession does not amount to “use”: “§924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense,” id., at 143.3 B This third case on the reach of §924(c)(1)(A) began to take shape when petitioner, Michael A. Watson, told a Government informant that he wanted to acquire a gun. On the matter of price, the informant quoted no dollar figure but suggested that Watson could pay in narcotics. Next, Watson met with the informant and an undercover law enforcement agent posing as a firearms dealer, to whom he gave 24 doses of oxycodone hydrocholoride (commonly, Oxy Contin) for a .50 caliber semiautomatic pistol. When law enforcement officers arrested Watson, they found the pistol in his car, and a later search of his house turned up a cache of prescription medicines, guns, and ammunition. Watson said he got the pistol “to protect his other firearms and drugs.” App. to Pet. for Cert. 11a.A federal grand jury indicted him for distributing a Schedule II controlled substance and for “using” the pistol during and in relation to that crime, in violation of §924(c)(1)(A).4 Watson pleaded guilty across the board ,reserving the right to challenge the factual basis for a §924(c)(1)(A) conviction and the added consecutive sentence of 60 months for using the gun. The Court of Appeals affirmed, 191 Fed. Appx. 326 (CA5 2006) (per curiam ), on Circuit precedent foreclosing any argument that Watson had not “used” a firearm, see id., at 327 (citing United States v. Ulloa, 94 F. 3d 949 (CA5 1996) and United States v. Zuniga, 18 F. 3d 1254 (CA5 1994)).
The Government’s position that Watson “used” the pistol under §924(c)(1)(A) by receiving it for narcotics lacks authority in either precedent or regular English. To begin with, neither Smith nor Bailey implicitly decides this case. While Smith held that firearms may be “used” in a barter transaction, even with no violent employment, see 508 U. S., at 241, the case addressed only the trader who swaps his gun for drugs, not the trading partner who ends up with the gun. Bailey, too, is unhelpful, with its rule that a gun must be made use of actively to satisfy §924(c)(1)(A), as “an operative factor in relation to the predicate offense.” 516 U. S., at 143. The question here is whether it makes sense to say that Watson employed the gun at all; Bailey does not answer it. With no statutory definition or definitive clue, the meaning of the verb “uses” has to turn on the language as we normally speak it, see, e.g., Lopez v. Gonzales, 549 U. S. ___, ___ (2006) (slip op., at 5); Asgrow Seed Co. v. Winterboer, 513 U. S. 179, 187 (1995); FDIC v. Meyer, 510 U. S. 471, 476 (1994); there is no other source of a reasonable inference about what Congress understood when writing or what its words will bring to the mind of a careful reader. So, in Smith we looked for “everyday meaning,” 508 U. S., at 228, revealed in phraseology that strikes the ear as “both reasonable and normal,” id., at 230. See also Bailey, supra, at 145. This appeal to the ordinary leaves the Government without much of a case.The Government may say that a person “uses” a fire arms imply by receiving it in a barter transaction, but no one else would. A boy who trades an apple to get a granola bar is sensibly said to use the apple, but one would never guess which way this commerce actually flowed from hearing that the boy used the granola. Cf. United States v. Stewart, 246 F. 3d 728, 731 (CADC 2001) (“[W]hen a person pays a cashier a dollar for a cup of coffee in the courthouse cafeteria, the customer has not used the coffee. He has only used the dollar bill”). So, when Watson handed over the drugs for the pistol, the informant or the agent6 “used” the pistol to get the drugs, just as Smith held, but regular speech would not say that Watson himself used the pistol in the trade. “A seller does not ‘use’ a buyer’s consideration,” United States v. Westmoreland, 122 F. 3d 431, 436 (CA7 1997), and the Government’s contrary position recalls another case; Lopez, supra, at ___ (slip op. ,at 7), rejected the Government’s interpretation of 18 U. S. C. §924(c)(2) because “we do not normally speak or write the Government’s way.”7 B The Government would trump ordinary English with two arguments. First, it relies on Smith for the pertinence of a neighboring provision, 18 U. S. C. §924(d)(1), which authorizes seizure and forfeiture of firearms “intended to be used in” certain criminal offenses listed in §924(d)(3).Some of those offenses involve receipt of a firearm,8 from which the Government infers that “use” under §924(d) necessarily includes receipt of a gun even in a barter transaction. Smith is cited for the proposition that the term must be given the same meaning in both subsections, and the Government urges us to import “use” as “receipt in barter” into §924(c)(1)(A).We agree with the Government that §924(d) calls for attention; the reference to intended use in a receipt crime carries some suggestion that receipt can be “use” (more of a hint, say, than speaking of intended “use” in a crime defined as exchange). But the suggestion is a tepid one and falls short of supporting what is really an attempt to draw a conclusion too specific from a premise too general.The Smith majority rested principally on ordinary speech in reasoning that §924(c)(1) extends beyond use as a weapon and includes use as an item of barter, see 508 U. S., at 228–230, and the Smith opinion looks to §924(d) only for its light on that conclusion. It notes that the “intended to be used” clause of §924(d)(1) refers to offenses where “the firearm is not used as a weapon but instead as an item of barter or commerce,” id., at 234, with the implication that Congress intended “use” to reach commercial transactions, not just gun violence, in §924(d) generally, see id., at 234–235. It was this breadth of treatment that led the Smith majority to say that, “unless we are to hold that using a firearm has a different meaning in §924(c)(1) than it does in §924(d)—and clearly we should not—we must reject petitioner’s narrow interpretation.” Id., at 235 (citation omitted); see also Bailey, supra, at 146 (“[U]sing a firearm should not have a different meaning in §924(c)(1) than it does in §924(d)” (internal quotation marks omitted)).The Government over reads Smith. While the neighboring provision indicates that a firearm is “used” non offensively, and supports the conclusion that a gun can be “used” in barter, beyond that point its illumination fails. This is so because the utility of §924(d)(1) is limited by its generality and its passive voice; it tells us a gun can be “used” in a receipt crime, but not whether both parties to a transfer use the gun, or only one, or which one. The nearby subsection (c)(1)(A), however, requires just such a specific identification. It provides that a person who uses a gun in the circumstances described commits a crime, whose perpetrator must be clearly identifiable in advance. The agnosticism on the part of §924(d)(1) about who does the using is entirely consistent with common speech’s understanding that the first possessor is the one who “uses” the gun in the trade, and there is thus no cause to admonish us to adhere to the paradigm of a statute “as asymmetrical and coherent regulatory scheme, . . . in which the operative words have a consistent meaning throughout,” Gustafson v. Alloyd Co., 513 U. S. 561, 569 (1995), or to invoke the “standard principle of statutory construction. . . that identical words and phrases within the same statute should normally be given the same meaning,” Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. ___, ___ (2007) (slip op., at 7). Subsections (d)(1) and(c)(1)(A) as we read them are not at odds over the verb “use”; the point is merely that in the two subsections the common verb speaks to different issues in different voices and at different levels of specificity. The provisions do distinct jobs, but we do not make them guilty of employing the common verb inconsistently.9 The second effort to trump regular English is the claim that failing to treat receipt in trade as “use” would create unacceptable asymmetry with Smith. At bottom, this a textual policy critique says it would be strange to penalize one side of a gun-for-drugs exchange but not the other:“[t]he danger to society is created not only by the person who brings the firearm to the drug transaction, but also by the drug dealer who takes the weapon in exchange for his drugs during the transaction,” Brief for United States 23.The position assumes that Smith must be respected, and we join the Government at least on this starting point. A difference of opinion within the Court (as in Smith) does not keep the door open for another try at statutory construction, where stare decisis has “special force [since] the legislative power is implicated, and Congress remains free to alter what we have done.” Patterson v. McLean Credit Union, 491 U. S. 164, 172–173 (1989). What is more, in 14 years Congress has taken no step to modify Smith’s holding, and this long congressional acquiescence “has enhanced even the usual precedential force” we accord to our interpretations of statutes, Shepard v. United States, 544 U. S. 13, 23 (2005).The problem, then, is not with the sturdiness of Smith but with the limited malleability of the language Smith construed, and policy-driven symmetry cannot turn “receipt-in-trade” into “use.” Whatever the tension between the prior result and the outcome here, law depends on respect for language and would be served better by statutory amendment (if Congress sees asymmetry) than by racking statutory language to cover a policy it fails to reach. The argument is a peculiar one, in fact, given the Government’s take on the current state of §924(c)(1)(A). It was amended after Bailey and now prohibits not only using a firearm during and in relation to a drug trafficking crime, but also possessing one “in furtherance of” such a crime. 18 U. S. C. §924(c)(1)(A); see n. 3, supra. The Government is confident that “a drug dealer who takes a firearm in exchange for his drugs generally will be subject to prosecution” under this new possession prong. Brief for United States 27; see Tr. of Oral Arg. 41 (Watson’s case“ could have been charged as possession”); cf. United States v. Cox, 324 F. 3d 77, 83, n. 2 (CA2 2003) (“For defendants charged under §924(c) after [the post-Bailey] amendment, trading drugs for a gun will probably result in . . . possession [in furtherance of a drug trafficking crime]”). This view may or may not prevail, and we do not speak to it today, but it does leave the appeal to symmetry under-whelming in a contest with the English language, on the Government’s very terms. * * * Given ordinary meaning and the conventions of English, we hold that a person does not “use” a firearm under §924(c)(1)(A) when he receives it in trade for drugs. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
| We granted certiorari to resolve a conflict among the Circuits on whether a person “uses” a firearm within the meaning of 18 U. S. C. §924(c)(1)(A) when he trades narcotics to obtain a gun.5 549 U. S. ___ (2007). We now reverse. |
SUPREME COURT OF THE UNITED STATES No. 06–7949 BRIAN MICHAEL GALL, PETITIONER v. UNITED STATESON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT[December 10, 2007] JUSTICE STEVENS delivered the opinion of the Court. In two cases argued on the same day last Term we considered the standard that courts of appeals should apply when reviewing the reasonableness of sentences imposed by district judges. The first, Rita v. United States, 551 U. S. ___ (2007), involved a sentence within the range recommended by the Federal Sentencing Guidelines; we held that when a district judge’s discretionary decision in a particular case accords with the sentence the United States Sentencing Commission deems appropriate“ in the mine run of cases,” the court of appeals may presume that the sentence is reasonable. Id., at ___ (slip op., at 11).The second case, Claiborne v. United States, involved a sentence below the range recommended by the Guidelines, and raised the converse question whether a court of appeals may apply a “proportionality test,” and require that a sentence that constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances. See Claiborne v. United States, 549 U. S. ___ (2006). We did not have the opportunity to answer this question
because the case was mooted by Claiborne’s untimely death. Claiborne v. United States, 551 U. S. ___ (2007) (per curiam). We granted certiorari in the case before us today in order to reach that question, left unanswered last Term. 551 U. S. ___ (2007). We now hold that, while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse-of-discretion standard. We also hold that the sentence imposed by the experienced District Judge in this case was reasonable. I In February or March 2000, petitioner Brian Gall, a second - year college student at the University of Iowa, was invited by Luke Rinderknecht to join an ongoing enterprise distributing a controlled substance popularly known as “ecstasy.”1 Gall—who was then a user of ecstasy, cocaine, and marijuana—accepted the invitation. During the ensuing seven months, Gall delivered ecstasy pills, which he received from Rinderknecht, to other conspirators, who then sold them to consumers. He netted over $30,000. A month or two after joining the conspiracy, Gall stopped using ecstasy. A few months after that, in September 2000, he advised Rinderknecht and other coconspirators that he was withdrawing from the conspiracy. He has not sold illegal drugs of any kind since. He has, in the words of the District Court, “self-rehabilitated.” App. 75. He graduated from the University of Iowa in 2002, and moved first to Arizona, where he obtained a job in the construction industry, and later to Colorado, where he earned $18 per hour as a master carpenter. He has not used any illegal drugs since graduating from college. After Gall moved to Arizona, he was approached by federal law enforcement agents who questioned him about his involvement in the ecstasy distribution conspiracy. Gall admitted his limited participation in the distribution of ecstasy, and the agents took no further action at that time. On April 28, 2004—approximately a year and a half after this initial interview, and three and a half years after Gall withdrew from the conspiracy—an indictment was returned in the Southern District of Iowa charging him and seven other defendants with participating in a conspiracy to distribute ecstasy, cocaine, and marijuana, that began in or about May 1996 and continued through October 30, 2002. The Government has never questioned the truthfulness of any of Gall’s earlier statements or contended that he played any role in, or had any knowledge of, other aspects of the conspiracy described in the indictment. When he received notice of the indictment, Gall moved back to Iowa and surrendered to the authorities. While free on his own recognizance, Gall started his own business in the construction industry, primarily engaged in subcontracting for the installation of windows and doors. In his first year, his profits were over $2,000 per month.Gall entered into a plea agreement with the Government, stipulating that he was “responsible for, but did not necessarily distribute himself, at least 2,500 grams of [ecstasy], or the equivalent of at least 87.5 kilograms of marijuana.” Id., at 25. In the agreement, the Government acknowledged that by “on or about September of 2000,” Gall had communicated his intent to stop distributing ecstasy to Rinderknecht and other members of the conspiracy. Ibid. The agreement further provided that recent changes in the Guidelines that enhanced the recommended punishment for distributing ecstasy were not
applicable to Gall because he had withdrawn from the conspiracy prior to the effective date of those changes. In her pre sentence report, the probation officer concluded that Gall had no significant criminal history; that he was not an organizer, leader, or manager; and that his offense did not involve the use of any weapons. The report stated that Gall had truthfully provided the Government with all of the evidence he had concerning the alleged offenses, but that his evidence was not useful because he provided no new information to the agents. The report also described Gall’s substantial use of drugs prior to his offense and the absence of any such use in recent years. The report recommended a sentencing range of 30 to 37 months of imprisonment.The record of the sentencing hearing held on May 27, 2005, includes a “small flood” of letters from Gall’s parents and other relatives, his fiancé, neighbors, and representatives of firms doing business with him, uniformly praising his character and work ethic. The transcript includes the testimony of several witnesses and the District Judge’s colloquy with the Assistant United States Attorney (AUSA) and with Gall. The AUSA did not contest any of the evidence concerning Gall’s law-abiding life during the preceding five years, but urged that “the Guidelines are appropriate and should be followed,” and requested that the court impose a prison sentence within the Guidelines range. Id., at 93. He mentioned that two of Gall’s coconspirators had been sentenced to 30 and 35 months, respectively, but upon further questioning by the District Court, he acknowledged that neither of them had voluntarily withdrawn from the conspiracy. The District Judge sentenced Gall to probation for a term of 36 months. In addition to making a lengthy statement on the record, the judge filed a detailed sentencing memorandum explaining his decision, and provided the following statement of reasons in his written judgment:
“The Court determined that, considering all the factors under 18 U. S. C. 3553(a), the Defendant’s explicit withdrawal from the conspiracy almost four years before the filing of the Indictment, the Defendant’s post-offense conduct, especially obtaining a college degree and the start of his own successful business, the support of family and friends, lack of criminal history, and his age at the time of the offense conduct, all warrant the sentence imposed, which was sufficient, but not greater than necessary to serve the purposes of sentencing.” Id., at 117. At the end of both the sentencing hearing and the sentencing memorandum, the District Judge reminded Gall that probation, rather than “an act of leniency,” is a “substantial restriction of freedom.” Id., at 99, 125. In the memorandum, he emphasized: “[Gall] will have to comply with strict reporting conditions along with a three-year regime of alcohol and drug testing. He will not be able to change or make decisions about significant circumstances in his life, such as where to live or work, which are prized liberty interests, without first seeking authorization from his Probation Officer or, perhaps, even the Court. Of course, the Defendant always faces the harsh consequences that await if he violates the conditions of his probationary term.” Id., at 125. Finally, the District Judge explained why he had concluded that the sentence of probation reflected the seriousness of Gall’s offense and that no term of imprisonment was necessary: “Any term of imprisonment in this case would be counter effective by depriving society of the contributions of the Defendant who, the Court has found, understands the consequences of his criminal conduct
and is doing everything in his power to forge a new life. The Defendant’s post-offense conduct indicates neither that he will return to criminal behavior nor that the Defendant is a danger to society. In fact, the Defendant’s post-offense conduct was not motivated by a desire to please the Court or any other governmental agency, but was the pre-Indictment product of the Defendant’s own desire to lead a better life.” Id., at 125–126. II The Court of Appeals reversed and remanded for re sentencing. Relying on its earlier opinion in United States v. Claiborne, 439 F. 3d 479 (CA8 2006), it held that a sentence outside of the Guidelines range must be supported by a justification that “‘“is proportional to the extent of the difference between the advisory range and the sentence imposed.”’” 446 F. 3d 884, 889 (CA8 2006) (quoting Claiborne, 439 F. 3d, at 481, in turn quoting United States v. Johnson, 427 F. 3d 423, 426–427 (CA7 2005)). Characterizing the difference between a sentence of probation and the bottom of Gall’s advisory Guidelines range of 30 months as “extraordinary” because it amounted to “a 100% downward variance,” 446 F. 3d, at 889, the Court of Appeals held that such a variance must be—and here was not—supported by extraordinary circumstances. Rather than making an attempt to quantify the value of the justifications provided by the District Judge, the Court of Appeals identified what it regarded as five separate errors in the District Judge’s reasoning: (1) He gave “too much weight to Gall’s withdrawal from the conspiracy”; (2)given that Gall was 21 at the time of his offense, the District Judge erroneously gave “significant weight” to studies showing impetuous behavior by persons under the age of 18; (3) he did not “properly weigh” the seriousness of Gall’s offense; (4) he failed to consider whether a sentence of probation would result in “unwarranted” disparities; and (5) he placed “too much emphasis on Gall’s post-offense rehabilitation.” Id., at 889–890. As we shall explain, we are not persuaded that these factors, whether viewed separately or in the aggregate, are sufficient to support the conclusion that the District Judge abused his discretion. As a preface to our discussion of these particulars, however, we shall explain why the Court of Appeals’ rule requiring “proportional” justifications for departures from the Guidelines range is not consistent with our remedial opinion in United States v. Booker, 543 U. S. 220 (2005). III In Booker we invalidated both the statutory provision,18 U. S. C. §3553(b)(1) (2000 ed., Supp. IV), which made the Sentencing Guidelines mandatory, and §3742(e) (2000ed. and Supp. IV), which directed appellate courts to apply a de novo standard of review to departures from the Guidelines. As a result of our decision, the Guidelines are now advisory, and appellate review of sentencing decisions is limited to determining whether they are “reasonable.” Our explanation of “reasonableness” review in the Booker opinion made it pellucidly clear that the familiar abuse-of discretion standard of review now applies to appellate review of sentencing decisions. See 543 U. S., at 260–262; see also Rita, 551 U. S., at ___ (STEVENS, J., concurring).It is also clear that a district judge must give serious consideration to the extent of any departure from the Guidelines and must explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications. For even though the Guidelines are advisory rather than mandatory, they are, as we pointed out in Rita, the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions.2 Id., at ___. In reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts may therefore take the degree of variance into account and consider the extent of a deviation from the Guidelines. We reject, however, an appellate rule that requires “extraordinary” circumstances to justify a sentence outside the Guidelines range. We also reject the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.As an initial matter, the approaches we reject come too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range. See id., at ___ (slip op., at 15) (“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”).3 Even the Government has acknowledged that such a presumption would not be consistent with Booker. See Brief for United States in Rita v. United States, O. T. 2006, No. 06–5754, pp. 34–35. The mathematical approach also suffers from infirmities of application. On one side of the equation, deviations from the Guidelines range will always appear more extreme—in percentage terms—when the range itself is low, and a sentence of probation will always be a 100% departure regardless of whether the Guidelines range is 1month or 100 years. Moreover, quantifying the variance as a certain percentage of the maximum, minimum, or median prison sentence recommended by the Guidelines gives no weight to the “substantial restriction of freedom” involved in a term of supervised release or probation. App. 95.We recognize that custodial sentences are qualitatively more severe than probationary sentences of equivalent terms. Offenders on probation are nonetheless subject to several standard conditions that substantially restrict their liberty. See United States v. Knights, 534 U. S. 112, 119 (2001) (“Inherent in the very nature of probation is that probationers ‘do not enjoy the absolute liberty to which every citizen is entitled’” (quoting Griffin v. Wisconsin, 483 U. S. 868, 874 (1987))).4 Probationers may not leave the judicial district, move, or change jobs without notifying, and in some cases receiving permission from, their probation officer or the court. They must report regularly to their probation officer, permit unannounced visits to their homes, refrain from associating with any person convicted of a felony, and refrain from excessive drinking. USSG §5B1.3. Most probationers are also subject to individual “special conditions” imposed by the court. Gall, for instance, may not patronize any establishment that derives more than 50% of its revenue from the sale of alcohol, and must submit to random drug tests as directed by his probation officer. App. 109. On the other side of the equation, the mathematical approach assumes the existence of some ascertainable method of assigning percentages to various justifications. Does withdrawal from a conspiracy justify more or less than, say, a 30% reduction? Does it matter that the withdrawal occurred several years ago? Is it relevant that the withdrawal was motivated by a decision to discontinue the use of drugs and to lead a better life? What percentage, if any, should be assigned to evidence that a defendant poses no future threat to society, or to evidence that innocent third parties are dependent on him? The formula is a classic example of attempting to measure an inventory of apples by counting oranges.5 Most importantly, both the exceptional circumstances requirement and the rigid mathematical formulation reflect a practice—common among courts that have adopted “proportional review”—of applying a heightened standard of review to sentences outside the Guidelines range. This is inconsistent with the rule that the abuse of-discretion standard of review applies to appellate review of all sentencing decisions—whether inside or outside the Guidelines range.As we explained in Rita, a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. See 551 U. S., at ___. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the §3553(a) factors to determine whether they support the sentence requested by a party.6 In so doing, he may not presume that the Guidelines range is reasonable. See id., at ___. He must make an individualized assessment based on the facts presented. If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. Id., at _Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard. It must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the §3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range. Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness. Id., at ___. But if the sentence is outside the Guidelines range, the court may not apply a presumption of unreasonableness. It may consider the extent of the deviation, but must give due deference to the district court’s decision that the §3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court. Practical considerations also underlie this legal principle. “The sentencing judge is in a superior position to find facts and judge their import under §3553(a) in the individual case. The judge sees and hears the evidence, makes credibility determinations, has full knowledge oft he facts and gains insights not conveyed by the record. ”Brief for Federal Public and Community Defenders et al. as Amici Curiae 16. “The sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court.” Rita, 551 U. S., at ___ (slip op., at 18).Moreover, “district courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines sentences than appellate courts do.” Koon v. United States, 518 U. S. 81, 98 (1996).7 “It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Id., at 113.8 The uniqueness of the individual case, however, does not change the deferential abuse-of discretion standard of review that applies to all sentencing decisions. As we shall now explain, the opinion of the Court of Appeals in this case does not reflect the requisite deference and does not support the conclusion that the District Court abused its discretion. IV As an initial matter, we note that the District Judge committed no significant procedural error. He correctly calculated the applicable Guidelines range, allowed both parties to present arguments as to what they believed the appropriate sentence should be, considered all of the §3553(a) factors, and thoroughly documented his reasoning. The Court of Appeals found that the District Judge erred in failing to give proper weight to the seriousness of the offense, as required by §3553(a)(2)(A), and failing to consider whether a sentence of probation would create unwarranted disparities, as required by §3553(a)(6). We disagree. Section 3553(a)(2)(A) requires judges to consider “the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” The Court of Appeals concluded that “the district court did not properly weigh the seriousness of Gall’s offense” because it “ignored the serious health risks ecstasy poses.” 446 F. 3d, at 890. Contrary to the Court of Appeals’ conclusion, the District Judge plainly did consider the seriousness of the offense. See, e.g., App. 99 (“The Court, however, is bound to impose a sentence that reflects the seriousness of joining a conspiracy to distribute MDMA or ecstasy”); id., at 122. 9 It is true that the District Judge did not make specific reference to the (unquestionably significant) health risks posed by ecstasy, but the prosecutor did not raise ecstasy’s effects at the sentencing hearing. Had the prosecutor raised the issue, specific discussion of the point might have been in order, but it was not incumbent on the District Judge to raise every conceivably relevant issue on his own initiative. The Government’s legitimate concern that a lenient sentence for a serious offense threatens to promote disrespect for the law is at least to some extent offset by the fact that seven of the eight defendants in this case have been sentenced to significant prison terms. Moreover, the unique facts of Gall’s situation provide support for the District Judge’s conclusion that, in Gall’s case, “a sentence of imprisonment may work to promote not respect, but derision, of the law if the law is viewed as merely a means to dispense harsh punishment without taking into account the real conduct and circumstances involved in sentencing.” Id., at 126. Section 3553(a)(6) requires judges to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” The Court of Appeals stated that “the record does not show that the district court considered whether a sentence of probation would result in unwarranted disparities.” 446 F. 3d, at 890. As with the seriousness of the offense conduct, avoidance of unwarranted disparities was clearly considered by the Sentencing Commission when setting the Guidelines ranges. Since the District Judge correctly calculated and carefully reviewed the Guidelines range, he necessarily gave significant weight and consideration to the need to avoid unwarranted disparities.Moreover, as we understand the colloquy between the District Judge and the AUSA, it seems that the judge gave specific attention to the issue of disparity when he inquired about the sentences already imposed by a different judge on two of Gall’s codefendants. The AUSA advised the District Judge