Full opinion text
COLLOTON, Circuit Judge. Dana Deegan pled guilty pursuant to a plea agreement to second-degree murder, in violation of 18 U.S.C. §§ 1111 and 1153. The district court sentenced Deegan to 121 months’ imprisonment, which was the bottom of the advisory guideline range. Deegan appeals the sentence, and we affirm. I. Deegan is a member of the Three Affiliated Tribes. On October 20,1998, Deegan secretly gave birth to a baby boy in the bathroom of her home on the Fort Bert-hold Indian Reservation. The baby was alive and breathing when he was delivered. Deegan had kept her pregnancy hidden, and no other adult was present at the time of the delivery. Deegan’s three other minor children were in the home, but they were unaware of the birth. Approximately two hours after delivering her son, Deegan fed, cleaned, and dressed him, and then placed him in a basket. She then left the house with her three other children, intentionally leaving the baby alone without food, water, or a caregiver. Deegan did not return to her home for approximately two weeks. When she returned, she found the baby dead in the basket where she had left him. She put his remains in a suitcase, and deposited the suitcase in a rural ditch area near her residence. On November 4,1999, a man working on a fence line found the suitcase containing the baby’s remains. He reported the discovery to law enforcement, and the Federal Bureau of Investigation (“FBI”) commenced an investigation. In March 2004, Deegan voluntarily submitted a DNA sample to the FBI. Nearly three years later, in February 2007, the FBI completed mitochondrial DNA analysis on the Deegan sample and confirmed that Deegan was the mother of the deceased baby. When Deegan was interviewed by the FBI in late February 2007, she falsely claimed that the baby was stillborn. Interviewed a second time in May 2007, Deegan repeated the false story and provided a written statement to that effect. Later during the May 2007 interview, however, Deegan admitted that her earlier statements were false and acknowledged that the baby had been born alive. She stated that she intentionally left him alone in her home, knowing that he would die. When asked why she did so, Deegan responded that she was unable to care for a fourth child, neither she nor her common-law husband were employed, and her husband spent what little money they did have to purchase drugs. On June 6, 2007, a grand jury returned a two-count indictment charging Deegan with first-degree murder and making false statements to the FBI. Deegan pled not guilty to both charges. On November 11, 2007, Deegan entered into a written plea agreement with the government, in which she agreed to plead guilty to one count of second-degree murder. In the factual portion of the agreement, Deegan acknowledged that the baby was born alive and breathing when she delivered him, and that she unlawfully and with malice aforethought caused his death by leaving him alone in the house for approximately two weeks. On November 30, 2007, the government filed an information charging Deegan with second-degree murder. On December 10, 2007, Deegan pled guilty to second-degree murder. At the plea hearing, the district court noted that the sentencing guidelines in effect at the time of Deegan’s offense provided for an advisory sentence of eight to ten years’ imprisonment for second-degree murder. The court advised Deegan that based on “what little information” it had about the offense at the plea hearing, the court was “not comfortable” with a range of eight to ten years, because the terms of imprisonment for other defendants convicted of second-degree murder “were not even close to that range.” The court remarked that there were a number of provisions in the advisory guidelines “that would justify an upward departure.” In an order filed on January 22, 2008, the court formally notified the parties that it was “contemplating an upward departure from the applicable Sentencing Guideline range,” based on USSG § 5K2.8, which provides for an increased sentence where “the defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the victim.” The court expressed its view that Deegan’s conduct “was unusually heinous, cruel, and brutal,” but stated that it would await review of the presentence investigation report (“PSR”), psychological evaluations, and a review of relevant case law before making a final decision on sentencing. Applying the 1997 sentencing guidelines in effect at the time of the offense, the PSR recommended an advisory sentencing range of 121 to 151 months’ imprisonment, which corresponded to a total offense level of 32 and a criminal history category of I. The total offense level represented a base offense level of 33, USSG § 2A1.2 (1997), a two-level upward adjustment for knowledge of a vulnerable victim, id. § 3Al.l(b), and a three-level decrease for acceptance of responsibility, id. § 3El.l(a), (b). Deegan objected to the two-level vulnerable-victim adjustment, arguing that there had been no factual finding that the infant was vulnerable, and that she had not admitted as much in the plea agreement. Following preparation of the PSR, both parties submitted sentencing memoranda to the court. Deegan again objected to the two-level vulnerable-victim adjustment. She also urged the court to vary from the advisory guidelines and sentence her to probation or to a very short period of incarceration. She based her argument for leniency on what she described as her “psychological and emotional condition” at the time of the offense, her history as a victim of abuse, and the fact that she acted impulsively, among other reasons. As support, she submitted a report prepared by Dr. Phillip Resnick, an expert in “neonaticide.” “Neonaticide” is a term coined by Resnick to describe the killing of an infant within the first twenty-four hours following birth. See Susan Hatters Friedman et al., Child Murder by Mothers: A Critical Analysis of the Current State of Knowledge and a Research Agenda, 162 Am. J. Psychiatry 1578, 1578 (2005). The report addressed what Resnick viewed as an “extraordinary number of mitigating circumstances,” and expressed the opinion that a prison sentence was not necessary to deter other women from committing neonaticide. The report concluded that Deegan suffered from an extensive history of abuse throughout her childhood and as an adult, suffered from major depression and dissociation at the time of the homicide, acted impulsively in leaving her baby alone, presented a very low risk of reoffending, and did not merit a lengthy prison sentence, especially because other women convicted in state court of committing similar offenses were usually sentenced to no more than three years in prison. At the sentencing hearing on May 18, 2008, the district court adopted the sentencing guideline calculation in the PSR. The court agreed with the probation office that the vulnerable-victim enhancement was warranted, and that Deegan’s advisory range was 121 to 151 months’ imprisonment. Finally, after calling Dr. Resnick to testify about his report and hearing arguments from counsel and testimony from Deegan herself, the court sentenced Deegan to 121 months’ imprisonment. On appeal, Deegan argues that the sentence of 121 months’ imprisonment is unreasonable, because the advisory guideline for second-degree murder is not based on empirical data and national experience, and because the sentence imposed is greater than necessary to comply with the statutory purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). As we understand Deegan’s brief on appeal, she argues that the district court committed both procedural and substantive errors when imposing sentence. Deegan raised no procedural objection in the district court, so we consider her claims of procedural error under the plain-error standard, United States v. Gray, 533 F.3d 942, 945 (8th Cir.2008), which requires as conditions for relief that Deegan show an obvious error that affected her substantial rights and seriously affected the fairness, integrity, or reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). No objection was required to preserve Deegan’s substantive claim that the sentence imposed is unreasonably long with regard to § 3553(a), United States v. Wiley, 509 F.3d 474, 476-77 (8th Cir.2007), but we review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). II. A. Deegan appears to raise four alleged procedural errors at sentencing. One is that the district court “failed on the record to engage in any meaningful discussion whatsoever of the § 3553(a) factors.” The Supreme Court in Gall explained that a sentencing court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” 552 U.S. at 50, 128 S.Ct. 586. Deegan did not object to the adequacy of the district court’s explanation or request any elaboration. On plain error review, we conclude that the explanation is not obviously inadequate. As the Supreme Court has explained, “[t]he appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). “The law leaves much, in this respect, to the judge’s own professional judgment.” Id. “[A] district court is not required to provide a ‘full opinion in every case,’ but must ‘set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision-making authority.’ ” United States v. Robinson, 516 F.3d 716, 718 (8th Cir.2008) (quoting Rita, 551 U.S. at 356, 127 S.Ct. 2456). Sentencing courts need not “categorically rehearse the § 3553(a) factors on the record, as long as it is clear that the court considered those factors.” United States v. Hernandez, 518 F.3d 613, 616 (8th Cir.2008). Nor have we required district courts to make specific findings on the record about each § 3553(a) factor. Perkins, 526 F.3d at 1110. “[A]ll that is generally required to satisfy the appellate court is evidence that the district court was aware of the relevant factors.” Id. The district court in this case said plenty to avoid an obvious shortcoming under a plain error standard of review. The court twice stated that it had “carefully considered” the § 3553(a) factors, even remarking that it had “spent many, many days and nights thinking about this case.” The court listed nearly all of the § 3553(a) factors on the record. Dr. Resnick, the expert who reported on Deegan’s psychological condition, structured his testimony at the sentencing hearing around many of the § 3553(a) factors, and cross-examination highlighted other statutory factors. The court heard all of this testimony and took it into account. The court read Res-nick’s written report, which was explicit in its reference to the § 3553(a) factors, “at least three times.” The court twice stated that it had carefully reviewed the PSR, the parties’ sentencing memoranda, the psychological evaluation of Deegan by another doctor, the many letters of support filed on her behalf, and the DVD presentation by her family. See United States v. Henson, 550 F.3d 739, 743 (8th Cir.2008) (observing that the presentence report contains extensive information regarding the factors under § 3553(a)). In explaining why it chose a sentence of 121 months’ imprisonment rather than a greater punishment, the court acknowledged that Deegan’s life had not been “easy,” and that it had been plagued with physical abuse and sexual abuse. Referring back to its statement at the plea hearing that it was likely to impose a sentence above the advisory range of eight to ten years, the court observed that Res-nick’s report and testimony were “helpful and insightful,” and that the court had gained “far better insight” into the ease after reviewing the report. The court told Deegan that it had “real compassion for [her] and [her] family and what [she had] gone through,” including the fact that she had three children and that her brother had been murdered. The court said that it “understood] why [Deegan] took the steps that she did in 1998,” and that “under the circumstances,” a sentence under the 2007 guidelines in effect at the time of sentencing, i.e., 19.5 to 24.5 years’ imprisonment, would not have been fair. But the court also thought a lesser sentence would not be sufficient, explaining that it must “ensure that justice is done,” and that it could not “ignore the fact that there was an innocent life that was lost.” The court remarked that justice in this case probably “lies between the extremes of public opinion,” and that the advisory range of 121 to 151 months’ imprisonment was reasonable for “a case of this nature.” This discussion is sufficient to permit meaningful appellate review and to ensure the public that Deegan’s case was given fair consideration. In the face of this record, which shows a district judge deliberating at length over a difficult case, and even changing his tentative conclusion between the plea hearing and the sentencing hearing, we cannot agree with our dissenting colleague that the district court “exercised no discretion.” Post, at 659-60. Deegan has not established plain error that would require a remand for a more elaborate statement of reasons. B. Deegan also argues that the court procedurally erred by treating the advisory guidelines as mandatory. Gall, 552 U.S. at 51, 128 S.Ct. 586. This contention is based on an isolated statement by the district court at the sentencing hearing, to which Deegan lodged no objection: In this case, the sentencing guidelines provide for a sentence range of 121 to 151 months. That’s 10 to 12-and-a-half years. Pm required to impose those guidelines that were in effect in October of 1998. If the guidelines that were in effect today were imposed, your sentence would be in the range of 19-and-a-half to 24-and-a-half years. (S. Tr. at 60) (emphasis added). The court evidently misspoke when it used the word “impose” (rather than “consider”), because the record as a whole makes clear that the court understood its discretion to sentence outside the advisory guideline range. There is no reason to believe that the district court applied the guidelines as mandatory, and if Deegan had objected at sentencing to the word “impose,” we are confident that the court would have corrected itself. Elsewhere, the court clearly explained that it was aware of its discretion to vary from the advisory guideline range: I’m also familiar with the recent decisions from the United States Supreme Court in the cases of Gall and Kimbrough which have established that district court judges around the country in the federal system have discretion to impose nonguideline sentences or variances from the sentencing guidelines. And Pm equally aware of my authority and my discretion to impose a non-guideline sentence. ... Pm aware of my discretion and authority to impose a nonguideline sentence or to depart from the guidelines. I have chosen in this case to impose a guideline sentence. Pm not going to exercise my discretion and depart and impose a nonguideline sentence because I believe that the sentencing range that’s been provided for in the sentencing guidelines in this particular case is reasonable. (S. Tr. 56, 58-59) (emphases added). On Deegan’s contention that the district court treated the guidelines as mandatory, there is no plain error warranting relief. C. Deegan also contends that the district court committed procedural error by considering the advisory guideline range that applied to Deegan’s offense under the 2007 sentencing guidelines. Deegan committed the offense in 1998, and the court calculated her advisory range according to the 1997 guidelines, which were in effect at the time of the offense. The court apparently followed the rule that application of the guidelines in effect at the time of sentencing would violate the Ex Post Facto Clause, see United States v. Bell, 991 F.2d 1445 (8th Cir.1993); USSG § lBl.ll(b), although the endurance of that rule is an open question in this circuit after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), now that the guidelines are merely a starting point that a court must consult and take into account. See United States v. Anderson, 570 F.3d 1025, 1033 n. 7 (8th Cir.2009) (assuming, without deciding, that the Ex Post Facto Clause applies to a district court’s application of the sentencing guidelines after Booker); compare, e.g., United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006) (holding that use of the guidelines in effect at time of sentencing does not violate Ex Post Facto Clause after Booker), with United States v. Turner, 548 F.3d 1094, 1098-1101 (D.C.Cir.2008) (disagreeing with Demaree). Although the court used the 1997 guidelines as the initial starting point, it also discussed the advisory range that would apply under the 2007 guidelines. The court observed that if Deegan had been sentenced under the 2007 guidelines, her advisory sentence would have been almost twice as long as the sentencing range under the 1997 guidelines. The court also noted that if Deegan had been convicted of voluntary manslaughter rather than second-degree murder, then her advisory range under the 2007 guidelines would be roughly the same range as the advisory range for second-degree murder under the 1997 guidelines. With this background, the court concluded: I guess what I’m trying to say is that if we used guidelines today, the sentence would be double what you’re currently looking at, and I don’t think that’s fan-under the circumstances. But when I reflect upon what a voluntary manslaughter charge carries under the current guidelines and what second degree murder carries under the guidelines that existed in 1998, I believe that those are reasonable guidelines for a case of this nature. Deegan did not object to the district court’s reference to the 2007 guidelines, and we see no obvious error in the court’s consideration of that information. Now that the guidelines are merely advisory, district courts are free to vary from the advisory range “based solely on policy considerations,” Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (internal quotation omitted), or to sentence within the advisory range based on policy considerations. The 2007 guidelines simply represent another policy view — different from the view embodied in the 1997 guidelines — of the appropriate sentence under § 3553(a) for second-degree murder or voluntary manslaughter in a run-of-the-mine case. The court was free to consider that view as part of its analysis of the appropriate sentence for Deegan under § 3553(a). There was no plain procedural error. D. Deegan’s remaining procedural argument is that the district court erred by assuming that the advisory guideline for second-degree murder was the product of empirical data and national experience. She points to this excerpt from the district court’s comments at sentencing: We have sentencing guidelines in the federal system that are designed to ensure that sentences are consistent and uniform throughout the country for people that commit this type of crime with the same type of criminal history that you have. The sentencing guidelines have been in effect for almost 20 years, and they are designed to provide some honesty in sentencing and to achieve some consistency in the federal system, and they’re based upon an analysis of hundreds of thousands of cases. Every year there are hundreds of thousands of cases that — in which defendants are sentenced around the country, and the Sentencing Commission compiles all that data and they try to develop sentencing guidelines that are fair and are reasonable. Deegan did not object to these comments at sentencing, and we see no obvious error that warrants relief. Insofar as Deegan argues that the court procedurally erred by “selecting a sentence based on clearly erroneous facts,” see Gall, 552 U.S. at 51, 128 S.Ct. 586, we disagree. The court’s discussion of the guidelines was an accurate statement about the general purpose and methodology behind the sentencing guidelines. See generally USSG Ch. 1, Pt. A, intro, comment. The court never suggested that the Sentencing Commission based the guideline on an analysis of hundreds of thousands of “neonaticide” eases, or that Deegan’s offense was a typical fact pattern for second-degree murder. The district court may have believed that the second-degree murder guideline considered in Deegan’s case was based on empirical data and national experience, but Deegan has not shown that this premise would have been incorrect. Citing United States v. Grant, No. 07-242, 2008 WL 2485610, at *4-5 (D.Neb. June 16, 2008), Deegan argues that amendments to the murder guidelines promulgated in 2002, 200i, 2006, and 2007 were not based on empirical data and national experience. But whatever the merits of that position, these amendments say nothing about how the Sentencing Commission established the 1997 guideline for second-degree murder, on which Deegan’s advisory range was based. Even with respect to the 1997 guideline, moreover, the district court simply treated the advisory guideline range as an initial starting point, while determining the final sentence after consideration of all of the § 3553(a) factors taken as a whole. There is no showing that an erroneous assumption about the underlying basis for the second-degree murder guideline drove the determination of Deegan’s sentence. In sum, Deegan has not identified an obvious procedural error at sentencing. The district court correctly calculated the advisory guideline range, allowed the parties to present evidence and argument regarding the sentence to be imposed, recognized its discretion to impose a sentence outside the advisory range, considered all of the § 3553(a) factors, determined the final sentence based on those factors, and adequately explained its rationale. III. A. We also conclude that Deegan’s sentence at the bottom of the advisory guideline range is substantively reasonable. We review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard, see Gall, 552 U.S. at 41, 128 S.Ct. 586, cognizant that “it will be the unusual ease when we reverse a district court sentence — whether within, above, or below the applicable Guidelines range — as substantively unreasonable.” United States v. Feemster, 572 F.3d 455, 464 (8th Cir.2009) (en banc) (internal quotation omitted). While many critics of the mandatory federal sentencing system believed that the guidelines resulted in excessive terms of imprisonment, the post-Booker system is not a one-way ratchet in favor of leniency. A district judge who favors a tough sentence is entitled to the same degree of deference as a district judge who opts for a lesser punishment. Where, as here, a sentence imposed is within the advisory guideline range, we typically accord it a presumption of reasonableness. See United States v. Harris, 493 F.3d 928, 932 (8th Cir.2007). The presumption “simply recognizes the real-world circumstance that when the judge’s discretionary decision accords with the Commission’s view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.” Rita, 551 U.S. at 350, 127 S.Ct. 2456. But even if we do not apply such a presumption here, on the view that Deegan’s offense is not a “mine run” second-degree murder, the district court did not abuse its considerable discretion by selecting a sentence of 121 months’ imprisonment. The record in this case includes evidence in aggravation and mitigation. As the district court observed in its presentencing order, a court reasonably could view Deegan’s offense as “unusually heinous, cruel, and brutal,” and deserving of harsh punishment. She left a newborn baby alone in a basket in an empty house without food and water for two weeks until the child died. Deegan countered with testimony from an expert who believes, among other things, that women who commit “neonaticide” are unlikely to reoffend, and that harsh punishment of such an offender is unlikely to deter others from committing the same offense. Deegan also presented evidence of her troubled personal history and family circumstances, and of course we share our dissenting colleague’s condemnation of violence against American Indian women. Deegan’s mitigating evidence convinced the district court that a sentence of more than ten years, which the court had contemplated at the time of the guilty plea, was greater than necessary to satisfy the statutory purposes of sentencing. But we are firm in our view that the district court did not abuse its discretion by refusing to impose a more lenient sentence. Whatever the deterrent effect of this sentence, general or specific, and whatever Deegan’s personal history, the court was entitled 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.” 18 U.S.C. § 3553(a)(2)(A). The district court was justified in saying that it could not “ignore the fact that there was an innocent life that was lost,” and that there was a “need to ensure that justice is done.” The court believed that justice in this case “lies between the extremes of public opinion,” and that may be so. There likely are those, like Deegan’s expert, who believe that a term of imprisonment is unnecessary, and there may be others who feel that no term of imprisonment is too long for one who murders a helpless infant in this manner. We need only determine whether the district court’s middle ground is a permissible choice. Applying a deferential abuse-of-discretion standard, we conclude that the sentence of 121 month’s imprisonment is reasonable •with regard to § 3553(a). B. Our dissenting colleague contends that Deegan’s sentence is unreasonably long, and that we should direct the district court to impose a shorter term of imprisonment. We believe that such a disposition would be inconsistent with the substantial deference now owed to the judgments of the sentencing courts. Cf. United States v. Burns, 577 F.3d 887, 896 (8th Cir.2009) (en banc) (Bright, J., concurring) (asserting that Gall “puts the discretion at sentencing in the district court, just where it should be, with due regard for the guidelines and the statutes relating to the goals of sentencing. Appellate courts are not sentencing courts.”). The guidelines are advisory only, and we “must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard.” Gall, 552 U.S. at 41, 128 S.Ct. 586. The question is not whether the former mandatory guideline system would have called for a downward departure below the mandatory guideline range, cf. post, at 647-48, but whether the district court’s sentence of 121 months’ imprisonment is reasonable in light of the statutory considerations described in § 3553(a). To support its conclusion that the district court’s chosen sentence was unreasonably harsh, the dissent cites a case involving a student at North Dakota State University (“NDSU”) who was prosecuted in North Dakota state court and sentenced to probation. The record of this case includes almost nothing about the NDSU case. Defense counsel stated that his summary, recounted by the dissent, post, at 657, was drawn from a newspaper article. The district court surely did not abuse its discretion by failing to conform Deegan’s federal sentence to a North Dakota state court case about which no evidence was presented. We disagree, moreover, with the dissent’s contention that the district court should have considered the “disparity” between Deegan’s sentence and the sentence that may have been imposed if Deegan, like the NDSU student, had been prosecuted in state court. Post, at 656-57, 657-58, 660-61. This argument contradicts the well-settled proposition that “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), refers only to disparities among federal defendants. It would have been error for the district court to consider potential federal/state sentencing disparities under § 3553(a)(6). United States v. Jeremiah, 446 F.3d 805, 807-08 (8th Cir.2006) (“Unwarranted sentencing disparities among federal defendants remains the only consideration under § 3553(a)(6) — both before and after Booker.”), United States v. Deitz, 991 F.2d 443, 447 (8th Cir.1993) (“If, at the time of sentencing, federal courts were to take into consideration a potential state sentence based upon similar state-charged offenses, the Sentencing Commission’s goal of imposing uniformity upon federal sentences for similarly situated defendants would be impeded, not furthered.”). :¡: * * For the foregoing reasons, we conclude that the district court did not commit plain procedural error, and the court’s sentence of 121 months’ imprisonment is not substantively unreasonable with regard to 18 U.S.C. § 3553(a). The judgment of the district court is affirmed. . The Honorable Daniel L. Hovland, Chief Judge, United States District Court for the District of North Dakota. . We disagree with the dissent that the district court's description of the chosen sentence as "reasonable” demonstrates that the court applied an impermissible presumption of reasonableness to the advisory guideline sentence, post, at 650, or that the court misunderstood its duty under § 3553(a) to select a sentence that is "sufficient, but not greater than necessary” to comply with the purposes of § 3553(a)(2). Post, at 653. As in United States v. Vaughn, 519 F.3d 802, 805 (8th Cir. 2008), where the sentencing court said it was to impose a "reasonable sentence,” there is no plain error, because the record as a whole shows that the court followed the proper procedure under Gall. . In its Fifteen Year Report, the Commission explained that murder was one of the offenses for which the original Commission, “either on its own initiative or in response to congressional actions, established guideline ranges that were significantly more severe than past practice.” See U.S. Sentencing Comm'n, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform 47 (2004). The report further observed that for violent crimes, “the Commission was careful to ensure that average sentences ... at least remained at current levels, and it raised them where the Commission was convinced that they were inadequate.” Id. at 68. It explained that “[f]or murder and aggravated assault, the Commission felt that past sentences were inadequate since these crimes generally involved actual, as opposed to threatened, violence.” Id. Nothing in these statements is inconsistent with an assumption that the second-degree murder guideline was based on empirical data and national experience, although the data and experience may have led the Commission to conclude that the average sentence should be increased. . Even if two different sentences had been imposed in federal court, moreover, one district judge has no obligation after Booker to follow the decision of another district judge. Cf. post, at 649 & n. 25. District judges now are permitted to apply their own policy views when determining what punishment is sufficient for a particular offense under 18 U.S.C. § 3553(a), Spears v. United States, - U.S. -, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009) (per curiam); Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and there inevitably will be some disparity in the sentencing of similarly-situated offenders. Booker, 543 U.S. at 263, 125 S.Ct. 738 ("We cannot and do not claim that use of a 'reasonableness' standard will provide the uniformity that Congress originally sought to secure.”).
BRIGHT, Circuit Judge, dissenting. I respectfully dissent. This case concerns the crime of neonaticide, which is the killing of a newborn child on the first day of life. This crime is practically unknown in the federal courts. Neonaticide is a crime relating to family and domestic concerns and, thus, federal courts do not generally deal with these crimes. Indeed, excluding habeas cases, my research has disclosed only one other reported federal case discussing and deciding a neonaticide crime. See United States v. Tom, 494 F.3d 1277 (10th Cir. 2007), rev’d and remanded to 327 Fed. Appx. 93 (10th Cir.2009). In the view of this judge, the procedure followed and the imposition of a ten-year-plus prison sentence on Ms. Deegan, a young American Indian woman, represents the most clear sentencing error that this dissenting judge has ever seen. For reversal, the dissent relies on the following Supreme Court cases: Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 892 (1996), and the holdings in United States v. Alvizo-Trujillo, 521 F.3d 1015 (8th Cir.2008), and United States v. Greene, 513 F.3d 904 (8th Cir.2008). See also Kimbrough v. United States, 552 U.S. 85, 91, 96, 109, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (discussing and commenting on sentencing procedure and stating the greatest respect to variance from guidelines when particular case is outside the “heartland”). I. SUMMARY OF CONTENTIONS AND STANDARD OF REVIEW A. Summary of Contentions Ms. Deegan’s crime consisted of a special sort of homicide called “neonaticide,” well documented in medical and legal literature, which describes the conduct of a parent, ordinarily the mother, who is often suffering from depression or other mental illness causing the death of an infant child within twenty-four hours of birth. First, Ms. Deegan’s conduct as neonaticide does not now, nor has it ever, come within the “run-of-the-mine” guidelines for second-degree murder, the charge to which Ms. Deegan pleaded guilty. But the district court mistakenly believed that this case fell within the second-degree murder guidelines. Thus, the sentence imposed was proeedurally gross error. Second, the district court presumed that the guidelines were reasonable. This is plain error. Third, because this case is outside the heartland of second-degree murder cases, the district court’s 18 U.S.C. § 3553(a) analysis was flawed at its beginning, and this case required imposition of a sentence completely apart from the guidelines and under § 3553(a). This the district court did not do. Fourth, analysis of the § 3553(a) factors demonstrates that Ms. Deegan’s sentence is substantively unreasonable. The district court’s approach to sentencing served to elevate a guidelines sentence above an individualized assessment of the facts and circumstances of this ease. Each error compounded the next one and these mistakes require reversal and remand. Finally, the failure to follow proper sentencing procedures and methodology led to a highly excessive sentence for Ms. Deegan. Her crime requires a different approach than taken by the district court and approved by the majority. B. Standard of Review I express my disagreement with the majority’s application of plain error in reviewing this sentence. In my view, defense counsel preserved the errors argued on appeal. The majority asserts: On appeal, Deegan argues that the sentence of 121 months’ imprisonment is unreasonable, because the advisory guideline for second-degree murder is not based on empirical data and national experience, and because the sentence imposed is greater than necessary to comply with the statutory purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). As we understand Deegan’s brief on appeal, she argues that the district court committed both procedural and substantive errors when imposing sentence. Deegan raised no procedural objection in the district court, so we consider her claims of procedural error under the plain-error standard. United States v. Gray, 533 F.3d 942, 945 (8th Cir.2008) which requires as conditions for relief that Deegan show an obvious error that affected her substantial rights and seriously affected the fairness, integrity, or reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Maj. op. at 629. Further, the majority reviews the following under the plain error standard: (a) the district court’s failure to meaningfully discuss the § 3553(a) factors, id. at 629-30; (b) treating the advisory guidelines as mandatory, id. at 631; (c) procedural error by applying the 2007 Guidelines to the instant offense, id. at 632; and (d) applying the second-degree murder guidelines to “this type of crime.” Id. at 632-33. Comparing the sentencing transcript with Ms. Deegan’s brief establishes that these errors were asserted in the district court and raised on appeal. At sentencing, defense counsel, in responding to the prosecutor’s recommendation for a guideline sentence of 121 months, asserted that: (a) the guideline sentence was far greater than necessary (Sent. Tr. 46-47); (b) such a sentence was not warranted under the § 3553(a) factors (Sent. Tr. 46-52); (c) a guideline sentence would result in a sentencing disparity as compared to a neonaticide sentence imposed in a North Dakota state court (Sent. Tr. 50-53); and (d) a variance, a non-guideline sentence, should be imposed after proper consideration of the § 3553(a) factors (Sent. Tr. 55-56, 59). The district court clearly recognized the request of defense counsel when the court said, “The request in this case is for the imposition of a variance or a nonguideline sentence to be imposed in accordance with 18 USC Section 3553(a).” Sent. Tr. 56 (emphasis added). The contentions raised on appeal, see Appellant’s Brief at 19-24, that the sentence was “unreasonable,” “greater than necessary,” and that a guideline sentence should not apply to Ms. Deegan, were the same arguments raised before the district court. Defense counsel should not need to say more to preserve error in a criminal sentence. Ms. Deegan requested a non-guideline sentence and stated reasons in support of that recommendation. When defense counsel asserted that the prosecutor’s recommendation called for a sentence that was flawed and excessive, and requested a lesser sentence, the sentencing issue should be considered fully preserved. See Rita, 551 U.S. at 345 (error raised), 351, 127 S.Ct. 2456 (sentencing procedures discussed); but see United States v. Bain, 586 F.3d 634 (8th Cir.2009). To state that matters raised by Ms. Deegan should be considered as plain error is incorrect. But in any event, the procedural and substantive mistakes here are great and require reversal under any standard of review-plain error or preserved error. As will be discussed more fully, the prosecutor mistakenly told the sentencing judge: The United States believes that the Sentencing Commission took into account these type of events, these type of crimes when it put together sentencing guidelines such as exist in the 1997 edition. Given that fact, Your Honor, we believe that a guideline sentence would effectively meet the requirements of Section 3553, all of those goals of sentencing. Sent. Tr. 43 (emphasis added). The sentencing judge adopted and echoed that principle in imposing a guideline sentence of ten years and one month (121 months) imprisonment, echoing a resounding “yes” to this incorrect advice as the court said the guidelines are for people like you who “commit this type of crime with the same type of criminal history that you have.” Sent. Tr. 59. And further adding, “I’m required to impose those guidelines.... ” Id. Such statements imply more than a presumption that the guidelines apply to Ms. Deegan and constitute plain error. Thus, there exists plain error in sentencing procedure leading to an excessive, improper, and unfair sentence. See Alvizo-Trujillo, 521 F.3d at 1018. II. BACKGROUND To understand the errors in sentencing, this case requires a full accounting of Ms. Deegan’s life. All of the facts discussed below were before the district court at the sentencing hearing and were not disputed by the government. A. Childhood Abuse Ms. Deegan’s life is marked by a history of extensive and cruel abuse. Her alcoholic father beat her on an almost daily basis and dominated every aspect of life in the Deegan family. Ms. Deegan reported having out-of-body experiences during the beatings, as if she was watching herself being assaulted from outside of her body. Some of the beatings were so severe that her father kept her home from school to avoid repox-ts to Child Protective Services. She and her siblings were eventually removed from her parents’ house due to the abuse, placed in a variety of foster homes, and periodically returned to her parents’ house. While in foster care, Ms. Deegan was separated from her siblings and experienced physical abuse from some of her foster family members. In conversation with Dr. Resnick, Ms. Deegan said, “I think I will be forgiven [by my maker]. I’ve lived my hell throughout my childhood.” Add. 2, p. 12 (Resnick Report). Ms. Deegan also suffered extensive and cruel sexual abuse. At five years of age, her father’s drinking buddies began sexually abusing her. By age nine, five or six perpetrators had forced her to participate in oral, vaginal, and anal sex. One of the perpetrator's held her head under water several times to make her submissive and threatened her so she would not disclose the abuse. At age eleven, the sexual abuse ended when Ms. Deegan finally disclosed the abuse to her mother. Her father responded by beating her for being a “slut and allowing it to happen.” Add. 2, p. 5 (Resnick Report). Ms. Deegan spent much of her childhood caring for and protecting her six younger siblings. Her siblings reported that she frequently suffered physical abuse in their stead. As an adult the abuse continued and Ms. Deegan protected her siblings from her father’s alcoholic, depressive, and abusive states. On one occasion, her father attacked her while she was pregnant with her second child. She jumped through a window to escape. Add. 2, p. 7 (Resnick Report). B. Abuse from Shannon Hale At age fifteen, Ms. Deegan began a relationship with Shannon Hale, the son of one of her foster parents. Mr. Hale continued the abuse. On one occasion, after Mr. Hale physically assaulted her, Ms. Deegan was admitted to a psychiatric hospital for thirty days to receive assistance for the domestic violence she had endured. She bore four children fathered by Mr. Hale, including the infant victim in this case. After Ms. Deegan’s third child was born, she became depressed. At this time in her life, Mr. Hale was physically abusing her two to three times per week, forcing her to have sexual intercourse with him, and refusing to care for their children. He was not present at any of the births or to take Ms. Deegan home after the deliveries of the children. Mr. Hale continued abusing Ms. Deegan throughout their relationship, including during her pregnancies. Prenatal care records document that two days before she delivered their third child, Mr. Hale choked her and threw her onto gravel, causing injuries that persisted for several months. Despite the abuse, Ms. Deegan did not leave Mr. Hale permanently because he repeatedly assured her that he would reduce his drinking and stop abusing her. Ms. Deegan reported that she sometimes went to live with her parents when the abuse was most severe, but then her father would physically and verbally abuse her. Ms. Deegan also explained that she did not feel that she could leave Mr. Hale because of her relationship with his mother. Ms. Deegan reported that Mr. Hale’s mother “seemed to make things okay,” caused her to feel safe, and encouraged her to stay with Mr. Hale for the children’s sake. Ms. Deegan feared that if she left Mr. Hale, his mother, a prominent member of the Indian community, would acquire custody of her children. When Ms. Deegan learned she was pregnant with a fourth child (the child victim), she did not believe she was really pregnant. Ms. Deegan reported she had not developed a plan for coping with the birth of a fourth child because she had put the pregnancy out of her mind. She had previously suffered three miscarriages. She reported feeling so depressed that she could barely take care of herself and her three children. Ms. Deegan’s state of despair and depression was not merely the result of the physical, verbal, and sexual abuse she suffered. Ms. Deegan lived in extreme poverty and isolation. Both Ms. Deegan and Mr. Hale were unemployed. Ms. Deegan sustained herself and her family on food stamps and whatever money she could acquire to provide food for her young children: ages one, two, and five. When Ms. Deegan obtained any money, Mr. Hale took it and bought methamphetamine. Dr. Resnick explained why Ms. Deegan stayed with Mr. Hale before the homicide of her fourth child: 1) Ms. Deegan was raised in a home in which she saw her father repeatedly beat her mother. This aberrant model of marriage was all she knew. 2) Ms. Deegan feared that if she left Shannon Hale she would lose her relationship with the Hale family.... Irene Hale encouraged her to stay with Shannon so her children would have a father. 3) Ms. Deegan had virtually no financial resources. Shannon Hale used any available money for his alcohol and methamphetamine addiction. Irene Hale at least made sure that Ms. Deegan had groceries so she could feed her daughters, and herself. 4) Based on Ms. Deegan’s foster care experience, she knew that leaving one family situation sometimes resulted in a worse situation rather than an improvement. 5) As is common in men who batter their wives, Shannon Hale told Ms. Deegan that he would not assault her again and promised to control his drinking and use of illegal drugs. 6) Ms. Deegan did not have a viable alternative to staying with Shannon Hale. If she took her daughters to live in her parental home, she and her daughters would be subjected to physical and emotional abuse by her father. No shelter for battered women was available in her area. 7) Ms. Deegan was fearful that if she left Shannon, Irene Hale, who enjoyed an excellent reputation in the community, would take her daughters away from her.... Caring for her three daughters was the most important thing in her life. She feared that if Shannon Hale attempted to raise her three young daughters, they would not be safe because of his methamphetamine addiction and his demonstrated propensity for physical abuse. 8) Ms. Deegan feared that if she sought counseling for her marital problems, she might lose her daughters’ custody. 9) On the prior occasions when Ms. Deegan sought help from individuals and institutions, they failed to assist or protect her. Add. 2, p. 20-21 (Resnick Report). C. The Birth Circumstances On October 20, 1998, at twenty-five years of age, alone in her mobile home with her three children, Ms. Deegan went into labor with her fourth child. She endured the labor alone, did not tell anyone she was in labor, and delivered the child herself. She reported not feeling anything physically from the labor and that she had assisted the infant to breathe when he was born. Ms. Deegan cleaned, diapered, and fed her child. She then put clothes on him, placed him in a basket, and left him in the home alone. When asked why she left her child in the home alone, she replied: I couldn’t take anymore. I couldn’t handle it. I had everything on my shoulders. I couldn’t even help myself. I had nobody to help me. I had no job, no nothing. I had all my babies to care for, a welfare mom. I had the feeling of being worthless. What could I do? I was overwhelmed and depressed. I didn’t want to live through any of it anymore. I didn’t want to be there anymore, as a spouse, as a mother, as a daughter. Add. 2, p. 11 (Resnick Report). Ms. Deegan returned to her home approximately two weeks later. Ms. Deegan put her son’s body in a suitcase and placed the suitcase in a ditch near her home. The body was discovered approximately one year later. With an understanding of the background of Ms. Deegan and the circumstances surrounding the infant’s death, I turn to a discussion of neonaticide. III. NEONATICIDE Forty-three years ago, psychiatrist Dr. Phillip Resnick became interested in the topic of parents causing the death of their children. He has written nearly 100 articles, several on neonaticide and infanticide, and frequently presents and lectures on this subject. Every year he teaches a course on neonaticide for the American Psychiatric Association. He is considered the foremost neonaticide expert in this country. As defined by Dr. Resnick: [Njeonaticide is simply the killing of a newborn infant on the first day of life. It’s actually a term that I coined in an article I wrote in 1969 where I was distinguishing that type of killing of a baby, which has very different characteristics, from the killing of a baby who is older or a child. And so neonaticide has universally been accepted now as a particular phenomenon when the baby is killed the first day of life. Sent. Tr. 16. Dr. Resnick and other scholars explain the circumstances that lead to this tragic crime. Such a mother is often in an overwhelming state of desperation at the time of her infant’s birth and lacks adequate resources to mentally handle the situation of delivering a child. She often conceals and denies her pregnancy, lacks insight into the situation, shows poor judgment, is cognitively immature with limited intelligence, and lacks sufficient coping skills. “[The] commonly reported profile [of a homicidal mother] describes a woman usually in her twenties, who grew up or currently lives in poverty, is under-educated, has a history of abuse (both physical and sexual), remains isolated from social supports, has depressive and suicidal tendencies, and is usually experiencing rejection by a male lover at the time of the murders.” “Although the majority of women who commit neonaticide do not have any long-term psychological pathologies, it is likely that often they experience abnormal mental functioning during their pregnancies.” “During a homicidal episode, therefore, a mother may view a child as a mere extension of herself rather than as a separate being. A mother’s suicidal inclinations may often transform into filial homicide. In other words, killing her children may be much like killing herself.” In preparing to testify, Dr. Resnick conducted a six-hour interview of Ms. Deegan and reviewed the relevant FBI, medical, psychiatric, and school records. He diagnosed Ms. Deegan with suffering or having suffered from the following three psychiatric disorders: Major Depressive Disorder, recurrent, severe, without psychotic features at the time of the homicide, now in partial remission. Posttraumatic Stress Disorder, chronic. This diagnosis is supported by Ms. Deegan’s history of exposure to multiple traumatic events as a child of physical and sexual abuse. At the time she had intense feelings of helplessness, horror, and the fear of dying.... Dysthymic Disorder This diagnosis is based on the fact that during Ms. Deegan’s childhood she had a depressed mood for most of the day for more days than not for several years. Her depression was manifested by overeating, insomnia, low self esteem, and feelings of hopelessness. Add. 2, p. 13 (Resnick Report). Dr. Res-nick explained that at the time Ms. Deegan delivered her infant, she was severely depressed, overwhelmed by the state of her life, and “simply did not have the psychological resources to care for a fourth child.” Sent. Tr. 36. Dr. Resnick further testified that women who commit neonaticide are unable to cope with the pregnancy and endure great pain at the expense of keeping the child’s birth a secret: [Such women] are willing to put themselves through a great deal of anguish. They often will deliver the baby with no anesthesia,- no pain relief, no emotional support. They’ll stifle their screams, and that is how intensely important it is for them not to have their family, who may be in the house, actually know that they’re pregnant and having a baby. Sent. Tr. 33. The manner in which Ms. Deegan delivered her child conforms with other women’s acts of neonaticide. Ms. Deegan gave birth to the infant in the shower and kept the birth a secret. She coped with the pain of childbirth by dissociating. Dr. Resnick explained that just as Ms. Deegan had endured sexual assaults as a child by having out-of-body experiences, she used dissociation to separate herself from the intense pain of delivering the infant. Dr. Resnick also addressed Ms. Deegan’s belief that she was not pregnant. Dr. Resnick explained that, as is common in eases of neonaticide, Ms. Deegan neither planned for the killing of the infant or for the caring of the infant. As he succinctly stated, “They just put it out of their minds.” Sent. Tr. 28-29. Dr. Resnick further testified that in Ms. Deegan’s case, it was particularly easy for her to convince herself that she was not pregnant because she had previously miscarried three times and had experienced regular menstrual spotting during her prior pregnancies. Dr. Resnick explained that even though Ms. Deegan may have known she was pregnant, she may have made the assumpT tion that she might miscarry or just did not accept that she was truly pregnant. Dr. Resnick also testified that the manner in which Ms. Deegan carried out the neonaticide indicated that it was an impulsive act. He explained, unlike one who hides evidence of a crime, Ms. Deegan left her infant in a place where he “might have been discovered and she would be caught.” Sent. Tr. 29. Dr. Resnick explained that such conduct is not what one would expect from someone who is planning to take another’s life and seeks to “get away with it.” Sent. Tr. 29. He further explained that despite her psychological inability to cope with raising the child, Ms. Deegan still sought to keep the infant close to her home because of her emotional attachment to him. Dr. Resnick reasoned, “had it been other circumstances, [Ms. Deegan] would have cherished the baby.” Sent. Tr. 30. Finally, Dr. Resnick testified that Ms. Deegan did not have a significant support system from her family and community. She lived in a mobile home in a rural area of North Dakota. She lacked the financial resources to leave her abusive and troubled family life. Ms. Deegan did not have outreach services with which she could have received assistance, nor were there shelters for victims of domestic violence. At the time of her actions, North Dakota did not yet have a Safe Haven Law, whereby parents could bring a child for which they felt unable to provide care. Further, individuals and institutions had consistently failed Ms. Deegan when she needed help. It is apparent from Ms. Deegan’s background and the expert testimony in this case that every adverse factor that may play some role in neonaticide was suffered to an advanced degree by Ms. Deegan. As the dissent shows below, the district court made two critical errors in evaluating the record. First, the court thought the guidelines applied to this case. Second, the court recognized this testimony but failed to properly apply this important evidence in imposing its sentence. IV. REVIEW OF SENTENCING A. Inapplicability of second-degree murder guidelines Ms. Deegan’s crime of neonaticide was a unique sort of homicide and completely unlike the usual and ordinary killings that constitute second-degree murder under federal law. As I have already observed, federal courts do not ordinarily deal with these types of cases, which may be grist for the mills of state courts. Only because this neonaticide occurred on an Indian reservation does this case become one of federal jurisdiction. There exists no basis in the statements of the Sentencing Commission or in reviewing federal appellate second-degree murder cases to conclude that the crime of neonaticide comes within the federal second-degree murder sentencing guidelines. First, consider the Sentencing Reform Act of 1984 and the goals of the United States Sentencing Commission. It is axiomatic that the Sentencing Reform Act, through the imposition of mandatory guidelines, worked a sea-change in federal sentencing. But even then, Congress recognized that the goals of certainty and uniformity must in some instances yield to unique circumstances: These provisions introduce a totally new and comprehensive sentencing system that is based upon a coherent philosophy. They rely upon detailed guidelines for sentencing similarly situated offenders in order to provide for a greater certainty and uniformity in sentencing. S.Rep. No. 98-225, at 38, reprinted in 1984 U.S.C.C.A.N. 3182, 3221 (emphasis added). Likewise, the Sentencing Commission instructs that: The sentencing court must select a sentence from within the guideline range. If, however, a particular case presents atypical features, the Act allows the court to depart from the guidelines and sentence outside the prescribed range. U.S.S.G. ch.l, pt. A, intro cmt. n. 2 (1997) (emphasis added). Thus both Congress and the Commission contemplated that not every crime would fall within the ambit of the guidelines. The presentence report is lamentable in this regard. Despite the seemingly obvious fact that neonaticide is an unusual crime in federal court, the presentence report makes no mention that this is an “atypical” case. Even more distressing, the presentence report fails to indicate much in the way of the abusive circumstances Ms. Deegan faced during her childhood and at the time she gave birth to the infant victim. These circumstances, detailed so graphically in this dissent, were simply not a part of the presentence report, which asserted that no factors warranted departure from the guidelines. Far worse than the omissions from the presentence report were the prosecutor’s statements at sentencing, which lack any basis in fact or law, about the applicability of the guidelines to Ms. Deegan’s conduct. At sentencing, Ms. Deegan’s counsel requested a non-guideline sentence. But the prosecutor mistakenly informed the district court that the Sentencing Commission took this type of crime into consideration in adopting the guidelines for second-degree murder: MR. HOCHHALTER: Yes, Your Honor. Your Honor, the United States Sentencing Commission was in existence back as early as the late eighties and certainly at the time of this event, and certainly at the time of events across the country where, as Dr. Resnick has pointed out, this has been occurring for many years. The United States believes that the Sentencing Commission took into account these type of events, these type of crimes when it put together sentencing guidelines such as exist in the 1997 edition. Given that fact, Your Honor, we believe that a guideline sentence would effectively meet the requirements of Section 3553, all of those goals of sentencing. Sent. Tr. 42-43 (emphasis added). After this statement, defense counsel again urged, t