GALL v. UNITED STATES

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38 OCTOBER TERM, 2007
Syllabus
GALL v. UNITED STATES
certiorari to the united states court of appeals for
the eighth circuit
No. 06–7949. Argued October 2, 2007—Decided December 10, 2007
Petitioner Gall joined an ongoing enterprise distributing the controlled
substance “ecstasy” while in college, but withdrew from the conspiracy
after seven months, has sold no illegal drugs since, and has used no
illegal drugs and worked steadily since graduation. Three and a half
years after withdrawing from the conspiracy, Gall pleaded guilty to his
participation. A presentence report recommended a sentence of 30 to
37 months in prison, but the District Court sentenced Gall to 36 months’
probation, finding that probation reflected the seriousness of his offense
and that imprisonment was unnecessary because his voluntary with
drawal from the conspiracy and postoffense conduct showed that he
would not return to criminal behavior and was not a danger to society.
The Eighth Circuit reversed on the ground that a sentence outside the
Federal Sentencing Guidelines range must be—and was not in this
case—supported by extraordinary circumstances.
Held:
1. While the extent of the difference between a particular sentence
and the recommended Guidelines range is 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. Pp. 46–53.
(a) Because the Guidelines are now advisory, appellate review of
sentencing decisions is limited to determining whether they are “reason
able,” United States v. Booker, 543 U. S. 220, and an abuse-of-discretion
standard applies to appellate review of sentencing decisions. A district
judge must consider the extent of any departure from the Guidelines
and must explain the appropriateness of an unusually lenient or harsh
sentence with sufficient justifications. An appellate court may take the
degree of variance into account and consider the extent of a deviation
from the Guidelines, but it may not require “extraordinary” circum
stances or employ a rigid mathematical formula using a departure’s per
centage as the standard for determining the strength of the justification
required for a specific sentence. Such approaches come too close to
creating an impermissible unreasonableness presumption for sentences
outside the Guidelines range. The mathematical approach also suffers

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Syllabus
from infirmities of application. And both approaches reflect a practice
of applying a heightened standard of review to sentences outside the
Guidelines range, which is inconsistent with the rule that the abuse-of
discretion standard applies to appellate review of all sentencing deci
sions—whether inside or outside that range. Pp. 46–49.
(b) A district court should begin by correctly calculating the appli
cable Guidelines range. The Guidelines are the starting point and ini
tial benchmark but are not the only consideration. After permitting
both parties to argue for a particular sentence, the judge should consider
all of 18 U. S. C. § 3553(a)’s factors to determine whether they support
either party’s proposal. He may not presume that the Guidelines range
is reasonable but must make an individualized assessment based on the
facts presented. If he decides on an outside-the-Guidelines sentence,
he must consider the extent of the deviation and ensure that the justifi
cation is sufficiently compelling to support the degree of variation. He
must adequately explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair sentencing. In
reviewing the sentence, the appellate court must first ensure that the
district court made no significant procedural errors and then consider
the sentence’s substantive reasonableness under an abuse-of-discretion
standard, taking into account the totality of the circumstances, including
the extent of a variance from the Guidelines range, but must give due
deference to the district court’s decision that the § 3553(a) factors justify
the variance. That the appellate court might have reasonably reached
a different conclusion does not justify reversal. Pp. 49–53.
2. On abuse-of-discretion review, the Eighth Circuit failed to give due
deference to the District Court’s reasoned and reasonable sentencing
decision. Since the District Court committed no procedural error, the
only question for the Circuit was whether the sentence was reasonable,
i. e., whether the District Judge abused his discretion in determining
that the § 3553(a) factors supported the sentence and justified a substan
tial deviation from the Guidelines range. The Circuit gave virtually no
deference to the District Court’s decision that the variance was justified.
The Circuit clearly disagreed with the District Court’s decision, but it
was not for the Circuit to decide de novo whether the justification for a
variance is sufficient or the sentence reasonable. Pp. 53–60.
446 F. 3d 884, reversed.
Stevens, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined.
Scalia, J., post, p. 60, and Souter, J., post, p. 60, filed concurring opinions.
Thomas, J., post, p. 61, and Alito, J., post, p. 61, filed dissenting opinions.

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40 GALL v. UNITED STATES
Opinion of the Court
Jeffrey T. Green, by appointment of the Court, 551 U. S.
1186, argued the cause for petitioner. With him on the
briefs were Quin M. Sorenson, Michael Dwyer, David
Hemingway, Marc Milavitz, Jeffrey L. Fisher, and Sarah
O’Rourke Schrup.
Deputy Solicitor General Dreeben argued the cause for
the United States. With him on the brief were Solicitor
General Clement, Assistant Attorney General Fisher,
Matthew D. Roberts, Nina Goodman, and Je ffrey P.
Singdahlsen.*
Justice Stevens delivered the opinion of the Court.
In two cases argued on the same day last Term we consid
ered the standard that courts of appeals should apply when
reviewing the reasonableness of sentences imposed by dis
trict judges. The first, Rita v. United States, 551 U. S. 338
(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 rea
sonable. Id., at 351.
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 sen
*Briefs of amici curiae urging reversal were filed for Families Against
Mandatory Minimums by Gregory L. Poe and Mary Price; for Federal
Public and Community Defenders et al. by Amy Baron-Evans, Sara E.
Noonan, Jennifer Niles Coffin, Carlos A. Williams, Paul M. Rashkind,
Daniel L. Kaplan, David Lewis, Timothy Crooks, and Kristen Gartman
Rogers; for the National Association of Criminal Defense Lawyers by Mi
guel A. Estrada, David Debold, and Peter Goldberger; and for the Wash
ington Legal Foundation et al. by Daniel J. Popeo and Paul D. Kamenar.
Alexandra A. E. Shapiro and Douglas A. Berman filed a brief for the
New York Council of Defense Lawyers as amicus curiae.

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tence that constitutes a substantial variance from the Guide
lines be justified by extraordinary circumstances. See
Claiborne v. United States, 549 U. S. 1016 (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. 87 (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.
1113 (2007). We now hold that, while the extent of the dif
ference between a particular sentence and the recommended
Guidelines range is surely relevant, courts of appeals must
review all sentences—whether inside, just outside, or sig
nificantly outside the Guidelines range—under a deferential
abuse-of-discretion standard. We also hold that the sen
tence 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 “ec
stasy.” 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 co-conspirators that he
was withdrawing from the conspiracy. He has not sold ille
gal drugs of any kind since. He has, in the words of the
District Court, “self-rehabilitated.” App. 75. He gradua
ted from the University of Iowa in 2002, and moved first to
1 Ecstasy is sometimes called “MDMA” because its scientific name is
“methylenedioxymethamphetamine.” App. 24, 118.

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Arizona, where he obtained a job in the construction indus
try, 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 fed
eral law enforcement agents who questioned him about his
involvement in the ecstasy distribution conspiracy. Gall ad
mitted his limited participation in the distribution of ecstasy,
and the agents took no further action at that time. On April
28, 2004—approximately 11⁄ 2 years after this initial interview,
and 31⁄ 2 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 Octo
ber 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 necessar
ily 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 “on or about September of 2000,” Gall had communi
cated his intent to stop distributing ecstasy to Rinderknecht
and other members of the conspiracy. Ibid. The agree
ment further provided that recent changes in the Guidelines
that enhanced the recommended punishment for distributing
ecstasy were not applicable to Gall because he had with

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drawn from the conspiracy prior to the effective date of
those changes.
In her presentence 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 evi
dence he had concerning the alleged offenses, but that his
evidence was not useful because he provided no new infor
mation to the agents. The report also described Gall’s sub
stantial 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 fiance, neighbors, and representatives of
firms doing business with him, uniformly praising his charac
ter 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 men
tioned that two of Gall’s co-conspirators had been sentenced
to 30 and 35 months, respectively, but upon further question
ing 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 memoran
dum explaining his decision, and provided the following
statement of reasons in his written judgment:
“The Court determined that, considering all the fac
tors under 18 U. S. C. 3553(a), the Defendant’s explicit

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44 GALL v. UNITED STATES
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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 fam
ily 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 nec
essary to serve the purposes of sentencing.” Id., at 117.
At the end of both the sentencing hearing and the sen
tencing 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 memoran
dum, he emphasized:
“[Gall] will have to comply with strict reporting condi
tions along with a three-year regime of alcohol and drug
testing. He will not be able to change or make deci
sions 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 De
fendant 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 con
cluded that the sentence of probation reflected the serious
ness 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 contribu
tions of the Defendant who, the Court has found, under
stands 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 Defend
ant is a danger to society. In fact, the Defendant’s

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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 resen
tencing. 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 justi
fication 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 im
petuous 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 re
sult 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 aggre
gate, are sufficient to support the conclusion that the District

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46 GALL v. UNITED STATES
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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 Sen
tencing Guidelines mandatory, and § 3742(e) (2000 ed. 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 deter
mining whether they are “reasonable.” Our explanation of
“reasonableness” review in the Booker opinion made it pellu
cidly clear that the familiar abuse-of-discretion standard of
review now applies to appellate review of sentencing deci
sions. See 543 U. S., at 260–262; see also Rita, 551 U. S., at
361–362 (Stevens, J., concurring).
It is also clear that a district judge must give serious con
sideration 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 349.
2 Notably, not all of the Guidelines are tied to this empirical evidence.
For example, the Sentencing Commission departed from the empirical ap
proach when setting the Guidelines range for drug offenses, and chose
instead to key the Guidelines to the statutory mandatory minimum sen
tences that Congress established for such crimes. See United States Sen
tencing Commission, Guidelines Manual § 1A1.1 (Nov. 2006) (USSG). This
decision, and its effect on a district judge’s authority to deviate from the

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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 ap
pellate rule that requires “extraordinary” circumstances to
justify a sentence outside the Guidelines range. We also re
ject 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 unreason
ableness for sentences outside the Guidelines range. See
id., at 354–355 (“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 pre
sumption 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
Guidelines range in a particular drug case, is addressed in Kimbrough v.
United States, post, p. 85.
3 Several Courts of Appeals had rejected such a presumption of unrea
sonableness even prior to our decision in Rita. See, e. g., United States
v. Howard, 454 F. 3d 700, 703 (CA7 2006) (“Although a sentence outside
the range does not enjoy the presumption of reasonableness that one
within the range does, it does not warrant a presumption of unreasonable
ness”); United States v. Matheny, 450 F. 3d 633, 642 (CA6 2006) (“[T]his
court’s holding that sentences within the advisory guideline range are pre
sumptively reasonable does not mean that sentences outside of that range
are presumptively unreasonable”); United States v. Myers, 439 F. 3d 415,
417 (CA8 2006) (“We have determined that a sentence imposed within the
guidelines range is presumptively reasonable. While it does not follow
that a sentence outside the guidelines range is unreasonable, we review a
district court’s decision to depart from the appropriate guidelines range
for abuse of discretion” (citation omitted)).

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the Guidelines range will always appear more extreme—in
percentage terms—when the range itself is low, and a sen
tence of probation will always be a 100% departure regard
less of whether the Guidelines range is 1 month or 100 years.
Moreover, quantifying the variance as a certain percentage
of the maximum, minimum, or median prison sentence rec
ommended by the Guidelines gives no weight to the “sub
stantial restriction of freedom” involved in a term of super
vised 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 pro
bationers ‘do not enjoy the absolute liberty to which every
citizen is entitled’ ” (quoting Griffin v. Wisconsin, 483 U. S.
868, 874 (1987); internal quotation marks omitted)).4 Proba
tioners may not leave the judicial district, move, or change
jobs without notifying, and in some cases receiving permis
sion from, their probation officer or the court. They must
report regularly to their probation officer, permit unan
nounced 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 sub
ject to individual “special conditions” imposed by the court.
Gall, for instance, may not patronize any establishment that
4 See also Advisory Council of Judges of National Council on Crime and
Delinquency, Guides for Sentencing 13–14 (1957) (“Probation is not
granted out of a spirit of leniency. . . . As the Wickersham Commission
said, probation is not merely ‘letting an offender off easily’ ”); 1 N. Cohen,
The Law of Probation and Parole § 7:9 (2d ed. 1999) (“[T]he probation or
parole conditions imposed on an individual can have a significant impact
on both that person and society. . . . Often these conditions comprehen
sively regulate significant facets of their day-to-day lives. . . . They may
become subject to frequent searches by government officials, as well as to
mandatory counseling sessions with a caseworker or psychotherapist”).

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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 ap
proach 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 oc
curred several years ago? Is it relevant that the with
drawal 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 ex
ample of attempting to measure an inventory of apples by
counting oranges.5
Most importantly, both the exceptional circumstances re
quirement and the rigid mathematical formulation reflect a
practice—common among courts that have adopted “propor
tional review”—of applying a heightened standard of review
to sentences outside the Guidelines range. This is inconsist
ent with the rule that the abuse-of-discretion standard of
review applies to appellate review of all sentencing deci
sions—whether inside or outside the Guidelines range.
As we explained in Rita, a district court should begin all
sentencing proceedings by correctly calculating the applica
ble Guidelines range. See 551 U. S., at 347–348. As a mat
ter 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 opportu
nity to argue for whatever sentence they deem appropriate,
the district judge should then consider all of the § 3553(a)
5 Notably, when the Court of Appeals explained its disagreement with
the District Judge’s decision in this case, it made no attempt to quantify
the strength of any of the mitigating circumstances.

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50 GALL v. UNITED STATES
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factors to determine whether they support the sentence re
quested by a party.6 In so doing, he may not presume that
the Guidelines range is reasonable. See id., at 351. He
must make an individualized assessment based on the facts
presented. If he decides that an outside-Guidelines sen
tence is warranted, he must consider the extent of the devia
tion and ensure that the justification is sufficiently compel
ling 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 ex
plain the chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sentencing.
Id., at 356–358.
6 Section 3553(a) lists seven factors that a sentencing court must con
sider. The first factor is a broad command to consider “the nature and
circumstances of the offense and the history and characteristics of the
defendant.” 18 U. S. C. § 3553(a)(1). The second factor requires the con
sideration of the general purposes of sentencing, including:
“the need for the sentence imposed—
“(A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense;
“(B) to afford adequate deterrence to criminal conduct;
“(C) to protect the public from further crimes of the defendant; and
“(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effec
tive manner.” § 3553(a)(2).
The third factor pertains to “ the kinds of sentences available, ”
§ 3553(a)(3); the fourth to the Sentencing Guidelines; the fifth to any rele
vant policy statement issued by the Sentencing Commission; the sixth to
“the need to avoid unwarranted sentence disparities,” § 3553(a)(6); and the
seventh to “the need to provide restitution to any victim,” § 3553(a)(7).
Preceding this list is a general directive to “impose a sentence sufficient,
but not greater than necessary, to comply with the purposes” of sentencing
described in the second factor. § 3553(a) (2000 ed., Supp. V). The fact
that § 3553(a) explicitly directs sentencing courts to consider the Guide
lines supports the premise that district courts must begin their analysis
with the Guidelines and remain cognizant of them throughout the sentenc
ing process.

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Regardless of whether the sentence imposed is inside or
outside the Guidelines range, the appellate court must re
view the sentence under an abuse-of-discretion standard. It
must first ensure that the district court committed no sig
nificant procedural error, such as failing to calculate (or im
properly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) fac
tors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence—includ
ing an explanation for any deviation from the Guidelines
range. Assuming that the district court’s sentencing deci
sion is procedurally sound, the appellate court should then
consider the substantive reasonableness of the sentence im
posed under an abuse-of-discretion standard. When con
ducting this review, the court will, of course, take into ac
count 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 347. But if the sentence is outside the Guidelines
range, the court may not apply a presumption of unreason
ableness. 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 reason
ably have concluded that a different sentence was appro
priate 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 de
terminations, has full knowledge of the facts and gains in
sights not conveyed by the record.” Brief for Federal Pub
lic 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

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52 GALL v. UNITED STATES
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him than the Commission or the appeals court.” Rita, 551
U. S., at 357–358. Moreover, “[d]istrict courts have an insti
tutional advantage over appellate courts in making these
sorts of determinations, especially as they see so many more
Guidelines cases 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 con
victed person as an individual and every case as a unique
study in the human failings that sometimes mitigate, some
times 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
7 District judges sentence, on average, 117 defendants every year. Ad
ministrative Office of United States Courts, 2006 Federal Court Manage
ment Statistics 167. The District Judge in this case, Judge Pratt, has
sentenced over 990 offenders over the course of his career. United States
v. Likens, 464 F. 3d 823, 827, n. 1 (CA8 2006) (Bright, J., dissenting). Only
a relatively small fraction of these defendants appeal their sentence on
reasonableness grounds. See Koon, 518 U. S., at 98 (“In 1994, for exam
ple, 93.9% of Guidelines cases were not appealed”); Likens, 464 F. 3d, at
827, n. 1 (Bright, J., dissenting) (noting that the District Judge had sen
tenced hundreds of defendants and that “[w]e have reviewed only a minis
cule number of those cases”); cf. United States Sentencing Commission,
2006 Sourcebook of Federal Sentencing Statistics 135–152.
8 It is particularly revealing that when we adopted an abuse-of
discretion standard in Koon, we explicitly rejected the Government’s ar
gument that “de novo review of departure decisions is necessary ‘to pro
tect against unwarranted disparities arising from the differing sentencing
approaches of individual district judges.’ ” 518 U. S., at 97 (quoting Brief
for United States, O. T. 1995, No. 94–1664, p. 12). Even then we were
satisfied that a more deferential abuse-of-discretion standard could suc
cessfully balance the need to “reduce unjustified disparities” across the
Nation and “consider every convicted person as an individual.” 518
U. S., at 113.

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support the conclusion that the District Court abused its
discretion.
IV
As an initial matter, we note that the District Judge com
mitted no significant procedural error. He correctly calcu
lated 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 re
quired 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 con
cluded 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
9 The District Judge also gave specific consideration to the fact—not
directly taken into account by the Guidelines—that Gall netted $30,000
from his participation in the conspiracy. He noted, however:
“[T]his fact can be viewed from different perspectives. On the one hand,
[Gall] should be punished for profiting from a criminal scheme. . . . On the
other hand, [Gall], who is from a working-class family and has few financial
resources, decided to turn his back on what, for him, was a highly profit
able venture. . . . The Court can not consider, for the purposes of sentenc
ing, one side of the financial aspect of the offense conduct without consider
ing the other.” App. 123–124, n. 3.

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54 GALL v. UNITED STATES
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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 sen
tence 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 sen
tenced 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 impris
onment 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 con
duct 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 dispari
ties.” 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 set
ting the Guidelines ranges. Since the District Judge cor
rectly calculated and carefully reviewed the Guidelines
range, he necessarily gave significant weight and consider
ation to the need to avoid unwarranted disparities.
Moreover, as we understand the colloquy between the Dis
trict Judge and the AUSA, it seems that the judge gave spe
cific 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

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55 Cite as: 552 U. S. 38 (2007)
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Judge that defendant Harbison had received a 30-month sen
tence and that Gooding had received 35 months. The follow
ing colloquy then occurred:
“THE COURT: . . . You probably know more about
this than anybody. How long did those two stay in the
conspiracy, and did they voluntarily withdraw?
“MR. GRIESS: They did not.
“THE COURT: They did not?
“MR. GRIESS: They did not voluntarily withdraw.
And they were in the conspiracy, I think, for a shorter
period of time, but at the very end.
“THE COURT: Okay. Thank you.
“MR. GRIESS: A significant difference there, Your
Honor, is that they were in the conspiracy after the
guidelines changed and, therefore, were sentenced at a
much higher level because of that.” App. 88.
A little later Mr. Griess stated: “The last thing I want to
talk about goes to sentencing disparity . . . . Obviously, the
Court is cognizant of that and wants to avoid any unwar
ranted sentencing disparities.” Id., at 89. He then dis
cussed at some length the sentence of 36 months imposed on
another codefendant, Jarod Yoder, whose participation in the
conspiracy was roughly comparable to Gall’s. Griess volun
tarily acknowledged three differences between Yoder and
Gall: Yoder was in the conspiracy at its end and therefore
was sentenced under the more severe Guidelines, he had a
more serious criminal history, and he did not withdraw from
the conspiracy.
From these facts, it is perfectly clear that the District
Judge considered the need to avoid unwarranted disparities,
but also considered the need to avoid unwarranted similari
ties among other co-conspirators who were not similarly situ
ated. The District Judge regarded Gall’s voluntary with
drawal as a reasonable basis for giving him a less severe
sentence than the three codefendants discussed with the

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56 GALL v. UNITED STATES
Opinion of the Court
AUSA, who neither withdrew from the conspiracy nor reha
bilitated themselves as Gall had done. We also note that
neither the Court of Appeals nor the Government has called
our attention to a comparable defendant who received a more
severe sentence.
Since the District Court committed no procedural error,
the only question for the Court of Appeals was whether the
sentence was reasonable—i. e., whether the District Judge
abused his discretion in determining that the § 3553(a) fac
tors supported a sentence of probation and justified a sub
stantial deviation from the Guidelines range. As we shall
now explain, the sentence was reasonable. The Court of
Appeals’ decision to the contrary was incorrect and failed to
demonstrate the requisite deference to the District Judge’s
decision.
V
The Court of Appeals gave virtually no deference to the
District Court’s decision that the § 3553(a) factors justified
a significant variance in this case. Although the Court of
Appeals correctly stated that the appropriate standard of
review was abuse of discretion, it engaged in an analysis that
more closely resembled de novo review of the facts presented
and determined that, in its view, the degree of variance was
not warranted.
The Court of Appeals thought that the District Court
“gave too much weight to Gall’s withdrawal from the conspir
acy because the court failed to acknowledge the significant
benefit Gall received from being subject to the 1999 Guide
lines.” 10 446 F. 3d, at 889. This criticism is flawed in that
it ignores the critical relevance of Gall’s voluntary with
drawal, a circumstance that distinguished his conduct not
only from that of all his codefendants, but from the vast ma
10 The Court of Appeals explained that under the current Guidelines,
which treat ecstasy more harshly, Gall’s base offense level would have
been 32, eight levels higher than the base offense level imposed under the
1999 Guidelines.

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jority of defendants convicted of conspiracy in federal court.
The District Court quite reasonably attached great weight
to the fact that Gall voluntarily withdrew from the conspir
acy after deciding, on his own initiative, to change his life.
This lends strong support to the District Court’s conclusion
that Gall is not going to return to criminal behavior and is
not a danger to society. See 18 U. S. C. §§ 3553(a)(2)(B), (C).
Compared to a case where the offender’s rehabilitation oc
curred after he was charged with a crime, the District Court
here had greater justification for believing Gall’s turnaround
was genuine, as distinct from a transparent attempt to build
a mitigation case.
The Court of Appeals thought the District Judge “gave
significant weight to an improper factor” when he compared
Gall’s sale of ecstasy when he was a 21-year-old adult to the
“impetuous and ill-considered” actions of persons under the
age of 18. 446 F. 3d, at 890. The appellate court correctly
observed that the studies cited by the District Judge do not
explain how Gall’s “specific behavior in the instant case was
impetuous or ill-considered.” Ibid.
In that portion of his sentencing memorandum, however,
the judge was discussing the “character of the defendant,”
not the nature of his offense. App. 122. He noted that
Gall’s criminal history included a ticket for underage drink
ing when he was 18 years old and possession of marijuana
that was contemporaneous with his offense in this case. In
summary, the District Judge observed that all of Gall’s crimi
nal history, “including the present offense, occurred when he
was twenty-one-years old or younger” and appeared “to
stem from his addictions to drugs and alcohol.” Id., at 122,
123. The District Judge appended a long footnote to his dis
cussion of Gall’s immaturity. The footnote includes an ex
cerpt from our opinion in Roper v. Simmons, 543 U. S. 551,
569 (2005), which quotes a study stating that a lack of matu
rity and an undeveloped sense of responsibility are qualities
that “ ‘often result in impetuous and ill-considered actions.’ ”

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58 GALL v. UNITED STATES
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The District Judge clearly stated the relevance of these stud
ies in the opening and closing sentences of the footnote:
“Immaturity at the time of the offense conduct is not
an inconsequential consideration. Recent studies on
the development of the human brain conclude that
human brain development may not become complete
until the age of twenty-five. . . . [T]he recent [National
Institutes of Health] report confirms that there is no
bold line demarcating at what age a person reaches full
maturity. While age does not excuse behavior, a sen
tencing court should account for age when inquiring into
the conduct of a defendant.” App. 123, n. 2.
Given the dramatic contrast between Gall’s behavior be
fore he joined the conspiracy and his conduct after with
drawing, it was not unreasonable for the District Judge to
view Gall’s immaturity at the time of the offense as a miti
gating factor, and his later behavior as a sign that he had
matured and would not engage in such impetuous and ill
considered conduct in the future. Indeed, his consideration
of that factor finds support in our cases. See, e. g., Johnson
v. Texas, 509 U. S. 350, 367 (1993) (holding that a jury was
free to consider a 19-year-old defendant’s youth when deter
mining whether there was a probability that he would con
tinue to commit violent acts in the future and stating that
“ ‘youth is more than a chronological fact. It is a time and
condition of life when a person may be most susceptible to
influence and to psychological damage’ ” (quoting Eddings v.
Oklahoma, 455 U. S. 104, 115 (1982))).
Finally, the Court of Appeals thought that, even if Gall’s
rehabilitation was dramatic and permanent, a sentence of
probation for participation as a middleman in a conspiracy
distributing 10,000 pills of ecstasy “lies outside the range of
choice dictated by the facts of the case.” 446 F. 3d, at 890
(internal quotation marks omitted). If the Guidelines were
still mandatory, and assuming the facts did not justify a
Guidelines-based downward departure, this would provide a
sufficient basis for setting aside Gall’s sentence because the

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59 Cite as: 552 U. S. 38 (2007)
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Guidelines state that probation alone is not an appropriate
sentence for comparable offenses.11 But the Guidelines are
not mandatory, and thus the “range of choice dictated by the
facts of the case” is significantly broadened. Moreover, the
Guidelines are only one of the factors to consider when im
posing sentence, and § 3553(a)(3) directs the judge to consider
sentences other than imprisonment.
We also note that the Government did not argue below,
and has not argued here, that a sentence of probation could
never be imposed for a crime identical to Gall’s. Indeed, it
acknowledged that probation could be permissible if the rec
ord contained different—but in our view, no more compel
ling—mitigating evidence. Tr. of Oral Arg. 37–38 (stating
that probation could be an appropriate sentence, given the
exact same offense, if “there are compelling family circum
stances where individuals will be very badly hurt in the de
fendant’s family if no one is available to take care of them”).
The District Court quite reasonably attached great weight
to Gall’s self-motivated rehabilitation, which was undertaken
not at the direction of, or under supervision by, any court,
but on his own initiative. This also lends strong support to
the conclusion that imprisonment was not necessary to deter
Gall from engaging in future criminal conduct or to protect
the public from his future criminal acts. See 18 U. S. C.
§§ 3553(a)(2)(B), (C).
The Court of Appeals clearly disagreed with the District
Judge’s conclusion that consideration of the § 3553(a) factors
justified a sentence of probation; it believed that the circum
stances presented here were insufficient to sustain such a
marked deviation from the Guidelines range. But it is not
for the Court of Appeals to decide de novo whether the justi
fication for a variance is sufficient or the sentence reasonable.
On abuse-of-discretion review, the Court of Appeals should
have given due deference to the District Court’s reasoned
11 Specifically, probation is not recommended under the Guidelines when
the applicable Guidelines range is outside Zone A of the sentencing table
as it is here. USSG § 5B1.1.

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60 GALL v. UNITED STATES
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and reasonable decision that the § 3553(a) factors, on the
whole, justified the sentence. Accordingly, the judgment of
the Court of Appeals is reversed.
It is so ordered.
Justice Scalia, concurring.
I join the opinion of the Court.
In Rita v. United States, 551 U. S. 338, 370–375 (2007)
(opinion concurring in part and concurring in judgment),
I wrote separately to state my view that any appellate re
view of sentences for substantive reasonableness will neces
sarily result in a sentencing scheme constitutionally indistin
guishable from the mandatory Guidelines struck down in
United States v. Booker, 543 U. S. 220 (2005). Whether a
sentencing scheme uses mandatory Guidelines, a “propor
tionality test” for Guidelines variances, or a deferential
abuse-of-discretion standard, there will be some sentences
upheld only on the basis of additional judge-found facts.
Although I continue to believe that substantive
reasonableness review is inherently flawed, I give stare deci
sis effect to the statutory holding of Rita. The highly defer
ential standard adopted by the Court today will result in
far fewer unconstitutional sentences than the proportionality
standard employed by the Eighth Circuit. Moreover, as I
noted in Rita, the Court has not foreclosed as-applied consti
tutional challenges to sentences. The door therefore re
mains open for a defendant to demonstrate that his sentence,
whether inside or outside the advisory Guidelines range,
would not have been upheld but for the existence of a fact
found by the sentencing judge and not by the jury.
Justice Souter, concurring.
I join the Court’s opinion here, as I do in today’s compan
ion case of Kimbrough v. United States, post, p. 85, which
follow United States v. Booker, 543 U. S. 220 (2005), and Rita
v. United States, 551 U. S. 338 (2007). My disagreements

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with holdings in those earlier cases are not the stuff of for
mally perpetual dissent, but I see their objectionable points
hexing our judgments today, see id., at 389–392 (Souter, J.,
dissenting), and Booker, supra, at 272 (Stevens, J., dissent
ing in part). After Booker’s remedial holding, I continue to
think that the best resolution of the tension between sub
stantial consistency throughout the system and the right of
jury trial would be a new Act of Congress: reestablishing
a statutory system of mandatory sentencing guidelines
(though not identical to the original in all points of detail),
but providing for jury findings of all facts necessary to set
the upper range of sentencing discretion. See Rita, supra,
at 392.
Justice Thomas, dissenting.
Consistent with my dissenting opinion in Kimbrough v.
United States, post, p. 114, I would affirm the judgment of
the Court of Appeals because the District Court committed
statutory error when it departed below the applicable Guide
lines range.
Justice Alito, dissenting.
The fundamental question in this case is whether, under
the remedial decision in United States v. Booker, 543 U. S.
220 (2005), a district court must give the policy decisions
that are embodied in the Sentencing Guidelines at least some
significant weight in making a sentencing decision. I would
answer that question in the affirmative and would therefore
affirm the decision of the Court of Appeals.
I
In Booker, a bare majority held that the Sentencing Re
form Act of 1984 (Sentencing Reform Act), as amended, 18
U. S. C. § 3551 et seq., 28 U. S. C. § 991 et seq., violated the
Sixth Amendment insofar as it required district judges to
follow the United States Sentencing Guidelines, but another

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62 GALL v. UNITED STATES
Alito, J., dissenting
bare majority held that this defect could be remedied by ex
cising the two statutory provisions, 18 U. S. C. §§ 3553(b)(1)
and 3742(e) (2000 ed. and Supp. IV), that made compliance
with the Guidelines mandatory. As a result of these two
holdings, the lower federal courts were instructed that
the Guidelines must be regarded as “effectively advisory,”
Booker, 543 U. S., at 245, and that individual sentencing deci
sions are subject to appellate review for “ ‘reasonableness,’ ”
id., at 262. The Booker remedial opinion did not explain ex
actly what it meant by a system of “advisory” guidelines or
by “reasonableness” review, and the opinion is open to differ
ent interpretations.
It is possible to read the opinion to mean that district
judges, after giving the Guidelines a polite nod, may then
proceed essentially as if the Sentencing Reform Act had
never been enacted. This is how two of the dissents inter
preted the Court’s opinion. Justice Stevens wrote that
sentencing judges had “regain[ed] the unconstrained discre
tion Congress eliminated in 1984” when it enacted the Sen
tencing Reform Act. Id., at 297. Justice Scalia stated
that “logic compels the conclusion that the sentencing judge
. . . has full discretion, as full as what he possessed before the
Act was passed, to sentence anywhere within the statutory
range.” Id., at 305.
While this is a possible understanding of the remedial
opinion, a better reading is that sentencing judges must still
give the Guidelines’ policy decisions some significant weight
and that the courts of appeals must still police compliance.
In a key passage, the remedial opinion stated:
“The district courts, while not bound to apply the
Guidelines, must consult those Guidelines and take
them into account when sentencing. See 18 U. S. C. A.
§§ 3553(a)(4), (5) (Supp. 2004). But compare post, at 305
(SCALIA, J., dissenting in part) (claiming that the sen
tencing judge has the same discretion ‘he possessed be
fore the Act was passed’). The courts of appeals review
sentencing decisions for unreasonableness. These fea

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63 Cite as: 552 U. S. 38 (2007)
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tures of the remaining system, while not the system
Congress enacted, nonetheless continue to move sen
tencing in Congress’ preferred direction, helping to
avoid excessive sentencing disparities while maintain
ing flexibility sufficient to individualize sentences where
necessary.” Id., at 264–265 (emphasis added).
The implication of this passage is that district courts are
still required to give some deference to the policy decisions
embodied in the Guidelines and that appellate review must
monitor compliance. District courts must not only “consult”
the Guidelines, they must “take them into account.” Id., at
264. In addition, the passage distances the remedial major
ity from Justice Scalia’s position that, under an advisory
Guidelines scheme, a district judge would have “discretion
to sentence anywhere within the ranges authorized by stat
ute” so long as the judge “state[d] that ‘this court does not
believe that the punishment set forth in the Guidelines is
appropriate for this sort of offense.’ ” Id., at 305 (opinion
dissenting in part).
Moreover, in the passage quoted above and at other points
in the remedial opinion, the Court expressed confidence that
appellate review for reasonableness would help to avoid
“ ‘excessive sentencing disparities’ ” and “would tend to iron
out sentencing differences.” Id., at 263. Indeed, a major
theme of the remedial opinion, as well as our decision last
Term in Rita v. United States, 551 U. S. 338 (2007), was that
the post-Booker sentencing regime would still promote the
Sentencing Reform Act’s goal of reducing sentencing dispari
ties. See, e. g., 551 U. S., at 348, 349, 354; Booker, 543 U. S.,
at 259–260, 263–264.
It is unrealistic to think this goal can be achieved over the
long term if sentencing judges need only give lipservice to
the Guidelines. The other sentencing factors set out in
§ 3553(a) are so broad that they impose few real restraints
on sentencing judges. See id., at 305 (Scalia, J., dissenting
in part). Thus, if judges are obligated to do no more than
consult the Guidelines before deciding upon the sentence

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64 GALL v. UNITED STATES
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that is, in their independent judgment, sufficient to serve the
other § 3553(a) factors, federal sentencing will not “move . . .
in Congress’ preferred direction.” Id., at 264 (opinion of the
Court). On the contrary, sentencing disparities will gradu
ally increase. Appellate decisions affirming sentences that
diverge from the Guidelines (such as the Court’s decision
today) will be influential, and the sentencing habits devel
oped during the pre-Booker era will fade.
Finally, in reading the Booker remedial opinion, we should
not forget the decision’s constitutional underpinnings.
Booker and its antecedents are based on the Sixth Amend
ment right to trial by jury. The Court has held that (at least
under a mandatory guidelines system) a defendant has the
right to have a jury, not a judge, find facts that increase
the defendant’s authorized sentence. See id., at 230–232;
Blakely v. Washington, 542 U. S. 296, 303–304 (2004). It is
telling that the rules set out in the Court’s opinion in the
present case have nothing to do with juries or factfinding
and, indeed, that not one of the facts that bears on petition
er’s sentence is disputed. What is at issue, instead, is the
allocation of the authority to decide issues of substantive
sentencing policy, an issue on which the Sixth Amendment
says absolutely nothing. The yawning gap between the
Sixth Amendment and the Court’s opinion should be enough
to show that the Blakely-Booker line of cases has gone
astray.
In Blakely, the Court drew a distinction—between judicial
factfinding under a guidelines system and judicial factfinding
under a discretionary sentencing system, see 542 U. S., at
309–310—that, in my judgment, cannot be defended as a
matter of principle. It would be a coherent principle to hold
that any fact that increases a defendant’s sentence beyond
the minimum required by the jury’s verdict of guilt must be
found by a jury. Such a holding, however, would clash with
accepted sentencing practice at the time of the adoption of
the Sixth Amendment. By that time, many States had

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enacted criminal statutes that gave trial judges the discre
tion to select a sentence from within a prescribed range,1 and
the First Congress enacted federal criminal statutes that
were cast in this mold. See An Act for the Punishment of
certain Crimes against the United States, 1 Stat. 112.2
1 To take some examples, Connecticut, as of 1784, punished burglary and
robbery without violence with imprisonment of up to 10 years “at the
Discretion of the Superior Court before whom the Conviction is had.”
See Acts and Laws of the State of Connecticut 18 (1784). A 1749 Dela
ware law punished assault of a parent with imprisonment of up to 18
months. Laws of the State of Delaware 306 (1797). A 1793 Maryland
law gave courts the ability to, “in their discretion, adjudge” criminal de
fendants “to serve and labour for any time, in their discretion, not exceed
ing” specified terms of years. Digest of the Laws of Maryland 196 (T.
Herty ed. 1799). By 1785, Massachusetts allowed judges to sentence
criminals convicted of a variety of offenses, including assault and man
slaughter, “according to the aggravation of the offense,” or “at the discre
tion of the Court.” The Perpetual Laws, of the Commonwealth of Massa
chusetts (1788), reprinted in The First Laws of The Commonwealth of
Massachusetts 244–252 (J. Cushing comp. 1981). In 1791, New Hampshire
passed a law punishing certain assaults with imprisonment of up to two
years, and forgery with imprisonment of up to three years, at the court’s
discretion. See Laws of the State of New Hampshire (1792). New Jer
sey, New York, North Carolina, Pennsylvania, Rhode Island, and South
Carolina likewise enacted criminal statutes providing for indeterminate
sentences of imprisonment at the discretion of the court either before, or
in the immediate wake of, the ratification of the Sixth Amendment. See,
e. g., Laws of the State of New Jersey 210–218 (1800) (detailing laws
passed in 1796); 2 Laws of the State of New York 45–48, 211, 242–248, 390
(1789); Laws of the State of North Carolina 288, 389 (J. Iredell ed. 1791);
An Abridgment of the Laws of Pennsylvania 1–47 (C. Read ed. 1801) (de
tailing laws passed 1790–1794); Public Laws of the State of Rhode Island
and Providence Plantations 584–600 (1798); Public Laws of the State of
South Carolina 55, 61, 257, 497 (J. Grimke ed. 1790).
2 We have often looked to laws passed by the First Congress to aide
interpretation of the Bill of Rights, which that Congress proposed. See,
e. g., Harmelin v. Michigan, 501 U. S. 957, 980 (1991) (opinion of Scalia,
J.) (noting, while interpreting the Eighth Amendment, that “[t]he actions
of the First Congress . . . are of course persuasive evidence of what the
Constitution means”); Marsh v. Chambers, 463 U. S. 783, 788–790 (1983)
(looking to the actions of the First Congress in interpreting the First

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66 GALL v. UNITED STATES
Alito, J., dissenting
Under a sentencing system of this type, trial judges inevi
tably make findings of fact (albeit informally) that increase
sentences beyond the minimum required by the jury’s ver
dict. For example, under a statute providing that the pun
ishment for burglary is, say, imprisonment for up to x years,
the sentencing court might increase the sentence that it
would have otherwise imposed by some amount based on
evidence introduced at trial that the defendant was armed
or that, before committing the crime, the defendant had told
a confederate that he would kill the occupants if they awak
ened during the burglary. The only difference between this
sort of factfinding and the type that occurs under a guide
lines system is that factfinding under a guidelines system is
explicit and the effect of each critical finding is quantified.
But in both instances, facts that cause a defendant to spend
more time in prison are found by judges, not juries, and
therefore no distinction can be drawn as a matter of Sixth
Amendment principle.
The Court’s acceptance of this distinction also produced
strange collateral consequences. A sentencing system that
gives trial judges the discretion to sentence within a speci
fied range not only permits judicial factfinding that may in
crease a sentence, such a system also gives individual judges
discretion to implement their own sentencing policies. This
latter feature, whether wise or unwise, has nothing to do
with the concerns of the Sixth Amendment, and a principal
objective of the Sentencing Reform Act was to take this
power out of the hands of individual district judges.
The Booker remedy, however, undid this congressional
choice. In curing the Sentencing Reform Act’s perceived
defect regarding judicial factfinding, Booker restored to the
district courts at least a measure of the policymaking author-
Amendment); Carroll v. United States, 267 U. S. 132, 150–152 (1925) (look
ing to the actions of the First Congress in interpreting the Fourth
Amendment).

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67 Cite as: 552 U. S. 38 (2007)
Alito, J., dissenting
ity that the Sentencing Reform Act had taken away. (How
much of this authority was given back is, of course, the
issue here.)
I recognize that the Court is committed to the Blakely-
Booker line of cases, but we are not required to continue
along a path that will take us further and further off course.
Because the Booker remedial opinion may be read to require
sentencing judges to give weight to the Guidelines, I would
adopt that interpretation and thus minimize the gap between
what the Sixth Amendment requires and what our cases
have held.
II
A
Read fairly, the opinion of the Court of Appeals holds that
the District Court did not properly exercise its sentencing
discretion because it did not give sufficient weight to the
policy decisions reflected in the Guidelines. Petitioner was
convicted of a serious crime, conspiracy to distribute “ec
stasy.” He distributed thousands of pills and made between
$30,000 and $40,000 in profit. Although he eventually left
the conspiracy, he did so because he was worried about ap
prehension. The Sentencing Guidelines called for a term of
imprisonment of 30 to 37 months, but the District Court im
posed a term of probation.
Compelled to interpret the Booker remedial opinion, the
District Court, it appears, essentially chose the interpreta
tion outlined in Justice Stevens’ and Justice Scalia’s dis
sents. The District Court considered the sentence called for
by the Guidelines, but I see no evidence that the District
Court deferred to the Guidelines to any significant degree.
Rather, the court determined what it thought was ap
propriate under the circumstances and sentenced petitioner
accordingly.
If the question before us was whether a reasonable jurist
could conclude that a sentence of probation was sufficient in

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68 GALL v. UNITED STATES
Alito, J., dissenting
this case to serve the purposes of punishment set out in 18
U. S. C. § 3553(a)(2), the District Court’s decision could not
be disturbed. But because I believe that sentencing judges
must still give some significant weight to the Guidelines
sentencing range, the Commission’s policy statements, and
the need to avoid unwarranted sentencing disparities,
§§ 3553(a)(3), (4), and (5) (2000 ed. and Supp. V), I agree with
the Eighth Circuit that the District Court did not properly
exercise its discretion.
Appellate review for abuse of discretion is not an empty
formality. A decision calling for the exercise of judicial dis
cretion “hardly means that it is unfettered by meaningful
standards or shielded from thorough appellate review.” Al
bemarle Paper Co. v. Moody, 422 U. S. 405, 416 (1975). Ac
cord, United States v. Taylor, 487 U. S. 326, 336 (1988);
Franks v. Bowman Transp. Co., 424 U. S. 747, 783 (1976)
(Powell, J., concurring in part and dissenting in part). And
when a trial court is required by statute to take specified
factors into account in making a discretionary decision, the
trial court must be reversed if it “ignored or slighted a factor
that Congress has deemed pertinent.” Taylor, supra, at
337. See Hensley v. Eckerhart, 461 U. S. 424, 438–440 (1983)
(finding an abuse of discretion where the District Court “did
not properly consider” 1 of 12 factors Congress found rele
vant to the amount of attorney’s fees when passing the Civil
Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C.
§ 1988). See also United States v. Oakland Cannabis Buy
ers’ Cooperative, 532 U. S. 483, 497–498 (2001) (A court exer
cising its discretion “cannot ‘ignore the judgment of Con
gress, deliberately expressed in legislation.’ Virginian R.
Co. v. Railway Employees, 300 U. S. 515, 551 (1937)”); Amer
ican Paper Institute, Inc. v. American Elec. Power Service
Corp., 461 U. S. 402, 413 (1983) (“To decide whether [Federal
Energy Regulatory Commission’s] action was . . . an abuse
of discretion, we must determine whether the agency ade

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69 Cite as: 552 U. S. 38 (2007)
Alito, J., dissenting
quately considered the factors relevant” under the statute
(internal quotation marks omitted)); Southern S. S. Co. v.
NLRB, 316 U. S. 31, 46, 47 (1942) (finding an abuse of discre
tion where the National Labor Relations Board sought to
fulfill one congressional objective but “wholly ignore[d] other
and equally important Congressional objectives”).
Here, the District Court “slighted” the factors set out in
18 U. S. C. §§ 3553(a)(3), (4), and (5) (2000 ed. and Supp. V)—
namely, the Guidelines sentencing range, the Commission’s
policy statements, and the need to avoid unwarranted sen
tencing disparities. Although the Guidelines called for a
prison term of at least 30 months, the District Court did not
require any imprisonment—not one day. The opinion of the
Court makes much of the restrictions and burdens of pro
bation, see ante, at 48–49, but in the real world there is a
huge difference between imprisonment and probation. If
the District Court had given any appreciable weight to the
Guidelines, the District Court could not have sentenced
petitioner to probation without very strong countervailing
considerations.
The court listed five considerations as justification for a
sentence of probation: (1) petitioner’s “voluntary and explicit
withdrawal from the conspiracy,” (2) his “exemplary behav
ior while on bond,” (3) “the support manifested by family
and friends,” (4) “the lack of criminal history, especially a
complete lack of any violent criminal history,” and (5) his age
at the time of the offense, 21. App. 97.
Two of the considerations that the District Court cited—
“the support manifested by family and friends” and his age,
ibid.—amounted to a direct rejection of the Sentencing Com
mission’s authority to decide the most basic issues of sen
tencing policy. In the Sentencing Reform Act, Congress
required the Sentencing Commission to consider and decide
whether certain specified factors—including “age,” “educa
tion,” “previous employment record,” “physical condition,”

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70 GALL v. UNITED STATES
Alito, J., dissenting
“family ties and responsibilities,” and “community ties”—
“have any relevance to the nature [and] extent . . . of an
appropriate sentence.” 28 U. S. C. § 994(d). These factors
come up with great frequency, and judges in the pre-
Sentencing Reform Act era disagreed regarding their rele
vance. Indeed, some of these factors were viewed by some
judges as reasons for increasing a sentence and by others as
reasons for decreasing a sentence. For example, if a defend
ant had a job, a supportive family, and friends, those factors
were sometimes viewed as justifying a harsher sentence on
the ground that the defendant had squandered the opportu
nity to lead a law-abiding life. Alternatively, those same
factors were sometimes viewed as justifications for a more
lenient sentence on the ground that a defendant with a job
and a network of support would be less likely to return to
crime. If each judge is free to implement his or her personal
views on such matters, sentencing disparities are inevitable.
In response to Congress’ direction to establish uniform na
tional sentencing policies regarding these common sentenc
ing factors, the Sentencing Commission issued policy state
ments concluding that “age,” “family ties,” and “community
ties” are relevant to sentencing only in unusual cases. See
United States Sentencing Commission, Guidelines Manual
§§ 5H1.1 (age), 5H1.6 (family and community ties) (Nov.
2006). The District Court in this case did not claim that
there was anything particularly unusual about petitioner’s
family or community ties or his age, but the court cited these
factors as justifications for a sentence of probation. Al
though the District Court was obligated to take into account
the Commission’s policy statements and the need to avoid
sentencing disparities, the District Court rejected Commis
sion policy statements that are critical to the effort to reduce
such disparities.
The District Court relied on petitioner’s lack of criminal
history, but criminal history (or the lack thereof) is a central

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71 Cite as: 552 U. S. 38 (2007)
Alito, J., dissenting
factor in the calculation of the Guidelines range. Petitioner
was given credit for his lack of criminal history in the calcu
lation of his Guidelines sentence. Consequently, giving peti
tioner additional credit for this factor was nothing more than
an expression of disagreement with the policy determination
reflected in the Guidelines range.
The District Court mentioned petitioner’s “exemplary be
havior while on bond,” App. 97, but this surely cannot be
regarded as a weighty factor.
Finally, the District Court was plainly impressed by pe
titioner’s “voluntary and explicit withdrawal from the con
spiracy.” Ibid. As the Government argues, the legitimate
strength of this factor is diminished by petitioner’s motiva
tion in withdrawing. He did not leave the conspiracy for
reasons of conscience, and he made no effort to stop the oth
ers in the ring. He withdrew because he had become afraid
of apprehension. 446 F. 3d 884, 886 (CA8 2006). While the
District Court was within its rights in regarding this factor
and petitioner’s “self-rehabilitat[ion],” App. 75, as positive
considerations, they are not enough, in light of the Guide
lines’ call for a 30- to 37-month prison term, to warrant a
sentence of probation.
B
In reaching the opposite conclusion, the Court attacks
straw men. The Court unjustifiably faults the Eighth Cir
cuit for using what it characterizes as a “rigid mathematical
formula.” Ante, at 47. The Eighth Circuit (following a
Seventh Circuit opinion) stated that a trial judge’s justifica
tions for a sentence outside the Guidelines range must be
“proportional to the extent of the difference between the ad
visory range and the sentence imposed.” 446 F. 3d, at 889
(quoting United States v. Claiborne, 439 F. 3d 479, 481 (CA8
2006), in turn quoting United States v. Johnson, 427 F. 3d
423, 426–427 (CA7 2005); internal quotation marks omitted).
Taking this language literally as requiring a mathematical

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72 GALL v. UNITED STATES
Alito, J., dissenting
computation, the Court has an easy time showing that math
ematical precision is not possible:
“[T]he mathematical approach assumes the existence of
some ascertainable method of assigning percentages to
various justifications. Does withdrawal from a conspir
acy justify more or less than, say, a 30% reduction? . . .
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?” Ante, at 49.
This criticism is quite unfair. It is apparent that the Sev
enth and Eighth Circuits did not mean to suggest that pro
portionality review could be reduced to a mathematical equa
tion, and certainly the Eighth Circuit in this case did not
assign numbers to the various justifications offered by the
District Court. All that the Seventh and Eighth Circuits
meant, I am convinced, is what this Court’s opinion states,
i. e., that “the extent of the difference between a particu
lar sentence and the recommended Guidelines range” is a
relevant consideration in determining whether the District
Court properly exercised its sentencing discretion. Ante,
at 41.
This Court’s opinion is also wrong in suggesting that the
Eighth Circuit’s approach was inconsistent with the abuse
of-discretion standard of appellate review. Ante, at 49.
The Eighth Circuit stated unequivocally that it was conduct
ing abuse-of-discretion review, 446 F. 3d, at 888–889; abuse
of-discretion review is not toothless; and it is entirely proper
for a reviewing court to find an abuse of discretion when
important factors—in this case, the Guidelines, policy state
ments, and the need to avoid sentencing disparities—are
“slighted,” Taylor, 487 U. S., at 337. The mere fact that the
Eighth Circuit reversed is hardly proof that the Eighth Cir
cuit did not apply the correct standard of review.

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73 Cite as: 552 U. S. 38 (2007)
Alito, J., dissenting
Because I believe that the Eighth Circuit correctly inter
preted and applied the standards set out in the Booker reme
dial opinion, I must respectfully dissent.3
3 While I believe that the Court’s analysis of the sentence imposed in
this case does not give sufficient weight to the Guidelines, it is noteworthy
that the Court’s opinion does not reject the proposition that the policy
decisions embodied in the Guidelines are entitled to at least some weight.
The Court’s opinion in this case conspicuously refrains from directly ad
dressing that question, and the opinion in Kimbrough v. United States,
post, p. 85, is explicitly equivocal, stating that “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,” post, at 109 (quoting Rita v. United States, 551 U. S. 338,
351 (2007)).