USA v. Kevin Elli

Filing

FILED OPINION (PAMELA ANN RYMER, CONSUELO M. CALLAHAN and SANDRA S. IKUTA) AFFIRMED. Judge: SSI Authoring. FILED AND ENTERED JUDGMENT. [7765490]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN BRIAN ELLIS,
Defendant-Appellant.

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


No. 09-50652
D.C. No.
8:07-cr-00087AHS-1
OPINION

Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, Senior District Judge, Presiding
Argued and Submitted
March 9, 2011—Pasadena, California
Filed May 26, 2011
Before: Pamela Ann Rymer, Consuelo M. Callahan, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta

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UNITED STATES v. ELLIS

COUNSEL
Jonathan D. Libby, Deputy Federal Public Defender, Los
Angeles, California, for defendant-appellant Kevin Brian
Ellis.
Robert J. Keenan, Assistant United States Attorney, Los
Angeles, California, for plaintiff-appellee United States.

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OPINION
IKUTA, Circuit Judge:
Defendant Kevin Ellis appeals his sentence for seven
counts of bank robbery. He argues that his sentence must be
vacated and the case remanded for resentencing because the
government breached the plea agreement, the district court’s
decision to make an upward departure from criminal history
category II to III, see USSG § 4A1.3, was procedurally erroneous, and the district court’s overall sentence was substantively unreasonable. We hold that the government did not
breach the plea agreement. Further, applying the reasoning in
United States v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006),
we hold that we review upward departures under § 4A1.3 for
substantive reasonableness, not for procedural error, and conclude that the district court’s sentence was substantively reasonable and any procedural error was harmless.
I
During the period from November 29, 2006 to May 3,
2007, Ellis committed seven bank robberies. Dressed in dark
sunglasses, a white dress shirt, a tie, and a dark colored
fedora, Ellis would approach one or two tellers and, either
showing or pointing a simulated hand gun, would demand
they hand over their money. In some cases, Ellis would pass
the teller a note. (On February 3, 2007, for example, the note
read, “I have a gun!! I will shoot you!!”) Ellis would then
place the money into a bag and exit the bank. During his fifth
robbery, on March 6, 2007, Ellis instructed three employees
to get into a closet while he exited the bank. And after the
seventh robbery, on May 3, 2007, he led police on a highspeed chase, which ended with officers using a Pursuit Intervention Technique maneuver (a maneuver which forces the
suspect’s vehicle to abruptly turn sideways to the direction of
travel). Police officers subsequently apprehended Ellis, who
thereafter admitted to committing the seven robberies.

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Ellis was charged in a seven-count indictment, each count
relating to one of the seven bank robberies. On June 1, 2009,
Ellis pleaded guilty to all seven counts pursuant to a plea
agreement with the government. As explained in greater detail
below, paragraph 14 of the plea agreement set forth the key
terms relevant to this appeal. The parties’ calculations of the
base offense level and specific adjustments for the seven
counts resulted in a total offense level of 29. The paragraph
also stated that Ellis and the government “agree to not argue
for application of any specific offense characteristic or adjustment other than those stipulated to above.” The government
promised not to make a motion “for an upward departure as
to defendant’s offense level,” but reserved “the right to argue
for an upward criminal history departure of up to Criminal
History Category IV,” and “the right under Booker to argue
for a sentence of up to the high-end of the Guidelines range
for Offense Level 29 and Criminal History Category IV,” i.e.,
151 months.1
The presentence report (PSR) noted the plea agreement’s
offense level calculation and provided its own, also resulting
in a total offense level of 29. The PSR included details of
Ellis’s criminal history. Prior to the seven bank robberies at
1

In full, the relevant portion of the plea deal provided as follows:
Defendant and the USAO agree to not argue for application of
any specific offense characteristic or adjustment other than those
stipulated to above in this Paragraph. Defendant reserves the right
to argue for a downward departure under the Guidelines, and he
reserves the right under Booker to argue for a downward “variance,” that is, any sentence that he believes to be fair and reasonable. The USAO reserves the right to make all arguments in
opposition to a defense motion for, or USPO recommendation of,
a downward departure or variance. The USAO agrees to make no
motion for an upward departure as to defendant’s offense level,
but it reserves the right to argue for an upward criminal history
departure of up to Criminal History Category IV if standard
application of the Guidelines yields a Criminal History Category
of less than IV.

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issue here, Ellis had been convicted of two criminal offenses.
At age 16, he and another defendant used a pistol to rob two
victims. Ellis was convicted of two counts of armed robbery
and was sentenced to five years in state prison on each count,
to be served concurrently. At age 28, he was convicted of
forcible rape. According to the police report, Ellis grabbed a
woman from behind, beat her with his fists, and forced the
victim to have oral sex and intercourse with him. Ellis was
sentenced to 75 months in state prison for this offense. In
addition, the PSR indicated that Ellis had a troubled childhood
and had been subject to physical and verbal abuse. It also
stated that after his release from prison, Ellis became addicted
to gambling and suffered economic losses which led to his
bank robbery spree.
After Ellis and the government submitted a first set of
briefs in response to the PSR, the government filed a supplemental sentencing brief, which Ellis claimed constituted a
breach of the plea agreement. (The plea agreement, as well as
the parties’ sentencing briefs, are described in more detail
below.) On December 14, 2009, the district court rejected
Ellis’s claim of breach, and exercised its discretion to impose
an above-Guidelines sentence.
On appeal, Ellis argues that his sentence must be vacated
for two reasons: first, the government breached the plea
agreement; and second, the sentence imposed by the district
court was procedurally incorrect and substantively unreasonable under 18 U.S.C. § 3553(a).
II
In order to evaluate Ellis’s arguments, we must first examine how the Guidelines apply to Ellis’s offenses, and the differences between the offense level calculations in the PSR
and those agreed to by the parties in the plea agreement.
The calculation of the Guidelines range is a crucial first
step in the sentencing process. Even though the Guidelines are

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advisory, they are still the “starting point and the initial
benchmark” for the sentencing process, Kimbrough v. United
States, 552 U.S. 85, 108 (2007) (quoting Gall v. United
States, 552 U.S. 38, 49 (2007)) (internal quotation marks
omitted), and an appellate court “must first ensure that the
district court committed no significant procedural error, such
as failing to calculate (or improperly calculating) the Guidelines range,” Gall, 552 U.S. at 51. If the district court makes
a procedural error, then the ordinary course is to vacate and
remand. See United States v. Munoz-Camarena, 631 F.3d
1028, 1030 n.5 (9th Cir. 2011) (explaining that harmless error
in Guidelines calculations is rare), vacating 621 F.3d 967 (9th
Cir. 2010). “Assuming that the district court’s sentencing
decision is procedurally sound, the appellate court should then
consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall, 552
U.S. at 51.
The first step in calculating the applicable Guidelines range
is to ascertain a defendant’s offense level, that is, the number
of points associated with his criminal activity. See USSG
§ 1B1.1(a). Ellis’s plea agreement calculated his offense level
as follows. Because seven separate robberies were involved,
the Guidelines’ instructions for grouping similar offenses
were applicable, and they required the parties to start by identifying the count with the highest offense level. Id. §§ 3D1.2,
3D1.3. Here, the parties agreed that Ellis’s most serious count
was Count 5, the March 6, 2007 robbery where three employees were ordered into a closet. This count had a base offense
level of 20. See USSG § 2B3.1(a) (setting the base offense
level for robbery at 20).
After determining the base offense level, the next step
under the Guidelines is to apply “any appropriate specific
offense characteristics, cross references, and special instructions contained in the particular guideline in Chapter Two in
the order listed.” Id. § 1B1.1(b). In the plea agreement, the
parties agreed to three specific offense characteristics that

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would be added to Count 5: two points for the banks’ FDICinsured status, see id. § 2B3.1(b)(1); two points for Ellis’s
physical restraint of the three bank employees by ordering
them into the closet, see id. § 2B3.1(b)(4)(B); and three points
for brandishing the simulated handgun, see USSG
§ 2B3.1(b)(2)(E). This added up to seven additional points,
for a total of 27.
Next, the Guidelines require the application of any applicable adjustments. Id. § 1B1.1(c). The parties agreed to two
adjustments to Count 5. First, the parties added the grouping
adjustment described in §§ 3D1.3(a) and 3D1.4. Because
there were seven separate offenses, the parties added five
points to the offense level of the most serious offense (Count
5). See id. § 3D1.4 (“The combined offense level is determined by taking the offense level applicable to the Group
with the highest offense level and increasing that offense level
by . . . 5 levels [where, as here, there are more than 5 units].”).
Adding five points to the 27 points calculated above adds up
to a total of 32 points. The parties also agreed to a second
adjustment: a reduction of three points for acceptance of
responsibility. See id. § 3E1.1. This led to a total offense level
calculation of 29 points.
The PSR’s calculation of the total offense level was the
same as the parties’ calculation in the plea agreement, with
one exception. Specifically, the PSR concluded that Count 7
(the robbery involving the high-speed chase) had the same
offense level as Count 5 (which the parties had agreed was the
most serious count). According to the PSR, during the robbery described in Count 7, Ellis “recklessly created a substantial risk of serious bodily injury because he drove at a high
rate of speed, failed to stop at marked stop signs, drove on the
opposite side of the road, and side-swiped an occupied vehicle.” Therefore, the PSR determined that a 2-point upward
adjustment for obstruction of justice under § 3C1.2 should
apply. As a result, both Count 7 and Count 5 had an offense
level calculation of 27. This change had no effect on the total

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offense level calculation, because adding five points to either
Count 5 or Count 7 still resulted in a total of 32 points.
Subtracting three points for acceptance of responsibility,
the PSR concluded that the offense level calculation for Ellis
was 29, just as the parties had stipulated in the plea agreement.
After completing this offense level calculation, a district
court is authorized by the Guidelines to exercise its discretion
to depart upward or downward from the applicable offense
level range under certain prescribed situations. See id. § 5K.2
Here the plea agreement did not address any departures to
specific offense characteristics or other adjustments, and the
PSR did not recommend any.
After determining the total offense level, the Guidelines
next require a determination of the defendant’s criminal history category pursuant to Chapter 4(A) of the Guidelines. See
id. § 1B1.1(f). This category is determined by adding points
for each qualifying prior sentence according to the instructions in § 4A1.1. Although as a general rule, “prior sentence[s],” i.e., “any sentence previously imposed upon adjudication of guilt . . . for conduct not part of the instant offense,”
id. § 4A1.2(a), are not included in a defendant’s criminal history calculation when he committed the offense as a juvenile,
id. § 4A1.2(d), or more than 15 years ago, id. § 4A1.2(e), the
court may nonetheless consider them if it “finds that a sentence imposed outside [the 15 year] time period is evidence
of similar, or serious dissimilar, criminal conduct,” id.
§ 4A1.2 app. n.8. The PSR determined that Ellis’s criminal
history category was II, because his prior armed robbery con2

There are two types of departures under the Guidelines. See USSG ch.
1, Pt. A, cmt. 4(b). The first, under § 5K, permits upward and downward
departures to a specific offense characteristic or other adjustment. The second, under § 4A1.3, allows upward and downward departures to the applicable criminal history category.

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viction was stale. See id. § 4A1.2(e)(1) (“Any prior sentence
of imprisonment exceeding one year and one month that was
imposed within fifteen years of the defendant’s commencement of the instant offense is counted.”). The PSR did not recommend any departures for the criminal history category
pursuant to § 4A1.3. As noted above, the plea agreement did
not stipulate any criminal history category, but the government reserved the “right to argue for an upward criminal history departure of up to Criminal History Category IV.”
Having pegged Ellis’s total offense level at 29 and his
criminal history as Category II, the PSR determined that the
sentencing range was 97-121 months. Finally, the PSR recommended a 97-month sentence, at the bottom of the range. For
reasons discussed below, the district court departed upward to
criminal history Category III, leading to a Guidelines range of
102 to 135 months, and then further varied upwards, determining that a 151-month sentence was necessary to meet the
goals of 18 U.S.C. § 3553(a).
III
We now turn to Ellis’s claim that the government breached
the plea agreement through statements it made in its supplemental sentencing brief. Although the standard of review for
a district court’s determination on this issue is unclear, compare United States v. Salemo, 81 F.3d 1453, 1460 (9th Cir.
1996) (interpretation of plea agreement reviewed de novo, but
whether facts demonstrate breach reviewed for clear error),
with United States v. Schuman, 127 F.3d 815, 817 (9th Cir.
1997) (per curiam) (de novo), we need not resolve this inconsistency here, because under either standard, the district court
did not err.
[1] As variants of a contract, plea bargains are measured
by contract law standards. United States v. Trapp, 257 F.3d
1053, 1056 (9th Cir. 2001). Courts enforce the literal terms of
a plea agreement, United States v. Johnson, 187 F.3d 1129,

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1134 (9th Cir. 1999), construing ambiguities in favor of the
defendant, United States v. Quach, 302 F.3d 1096, 1100-01
(9th Cir. 2002). The government may breach an agreement
when it attempts to influence the district court “to impose a
harsher sentence than the one to which the government agreed
in the plea agreement to recommend.” United States v. Allen,
434 F.3d 1166, 1175 (9th Cir. 2006) (citing United States v.
Mondragon, 228 F.3d 978, 980-81 (9th Cir. 2000)). It may
also breach an agreement when it “contradicts [a] recommendation with statements indicating a [different] preference.”
United States v. Camarillo-Tello, 236 F.3d 1024, 1027 (9th
Cir. 2001). Where the government promises to abstain from
making a sentencing recommendation, it may not argue that
“its inadvertent breach [in making a recommendation] is
immaterial,” because the fact that “the breach of agreement
was inadvertent does not lessen its impact,” Santobello v. New
York, 404 U.S. 257, 262 (1971).
Ellis’s arguments that the government breached the plea
agreement focus primarily on Section III of the “Argument”
section of the government’s supplemental brief, which is entitled: “BOOKER-BASED ARGUMENTS FOR AN UPWARD
DEPARTURE.” The first sentence in this section states: “Beyond the points raised in the government’s initial brief, four
other factors warrant an upward variance under Booker.” The
government added that “[t]he plea agreement authorizes the
government to make Booker-based arguments in support of
the 151-month sentencing recommendation.”
Section III then made four arguments as to why the court
should adopt the government’s sentencing recommendation of
151 months “to achieve the goals of sentencing set forth in 18
U.S.C. § 3553(a).” Most important here, the government first
argued that “due application of the Guidelines, namely Section 3C1.2, fails to account for the fact that defendant ‘recklessly created a substantial risk of death or serious bodily
injury to another person in the course of fleeing from a law
enforcement officer’ after committing his last bank robbery.”

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This failure stemmed from the fact that “[a]s reflected in the
PSR and the plea agreement, the 2-level adjustment available
under Section 3C1.2 [was] applied before the adjustments for
the ‘grouping’ of multiple counts of conviction.” Thus did
“the Section 3C1.2 adjustment applicable to the last robbery
‘c[o]me out in the wash.’ ” Accordingly, the government
argued, “[u]nder Booker” Ellis’s “reckless endangerment support[ed] the government’s sentencing recommendation.”3
Ellis claims that the government’s argument breached the
government’s agreement “to not argue for application of any
specific offense characteristic or adjustment other than those
stipulated to” in paragraph 14 of the plea agreement. Ellis
points to three alleged breaches of paragraph 14: (1) the government’s failure to object to the PSR’s inclusion of the
§ 3C1.2 adjustment in its calculation of the offense level for
Count 7; (2) the government’s argument that “[a]s reflected in
the PSR and the plea agreement, the 2-level adjustment available under Section 3C1.2 is applied before the adjustments for
‘grouping’ of multiple counts of conviction” and thus fails to
account for the harm of Ellis’s conduct in resisting arrest; and
(3) the government’s argument that § 3C1.2 does not fully
account for Ellis’s conduct as a basis “for an upward departure.”
[2] We disagree. Notwithstanding the government’s
3
The government made three other arguments to support an upward
variance. Specifically, it argued that after Ellis was stopped by the police,
he “engaged in highly provocative conduct that posed a serious risk to
police officers, bystanders, and himself.” The brief also asserted that
Ellis’s “criminal history, offense conduct, and flagrant disregard of the
lawful authority of the arresting officers demonstrate that [he] still constitutes a danger to the public,” and “[t]hat fact alone justifies the government’s recommendation of an above-Guidelines sentence.” Finally, the
government attempted to rebut Ellis’s sentencing submission detailing his
abusive childhood by arguing that the evidence of Ellis’s psychological
issues “show[s] that [Ellis] is presently a hostile and unpredictable menace
to the physical safety of others.”

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clumsy wording in two places, in context, its sentencing brief
merely urged the court to exercise its discretion under Booker
and 18 U.S.C. § 3553(a) to impose a sentence of 151 months,
an argument the government reserved the right to make. Far
from arguing for any change in the offense level calculation,
or suggesting that the calculation of 29 points was erroneous,
the government implored the district court to vary upward
from Ellis’s Guidelines range on account of conduct (the high
speed chase) that was not accounted for in his Guidelines calculation, due to the effect of the grouping rules.
[3] Specifically, the government’s statement that “[a]s
reflected in the PSR and the plea agreement, the 2-level
adjustment available under Section 3C1.2 is applied before
the adjustments for the ‘grouping’ of multiple counts of conviction,” accurately explained why the grouping rules erased
any effect of the two points associated with Ellis’s § 3C1.2
conduct. And while the heading of Section III of the government’s supplemental sentencing brief, “BOOKER-BASED
ARGUMENTS FOR AN UPWARD DEPARTURE,” used
the word “departure” rather than the word “variance,” its reference to “Booker-based arguments” and the text’s reference
to “an upward variance under Booker” indicate that the government had in mind the district court’s discretion to vary
from the Guidelines calculation under Booker. Indeed, the
government even noted that “[t]he plea agreement authorizes
the government to make Booker-based arguments in support
of the 151-month sentencing recommendation.” The clear
import of this section was to urge the court to increase Ellis’s
ultimate sentence to 151 months, not to move for an upward
departure in Ellis’s offense level. Other than the word “departure” in the heading, nothing in the section recommends that
the district court change Ellis’s offense level pursuant to a
Guidelines-based departure.
[4] Finally, the government did not breach the plea agreement by failing to object to the PSR’s inclusion of the § 3C1.2
adjustment in its calculation of the offense level for Count 7.

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The plea agreement did not require the government to do so,
and in any event, there would have been no basis for such an
argument, given that the PSR’s calculation of Ellis’s total
offense level was the same as the plea agreement’s calculation. Ellis’s reliance on Gunn v. Ignacio, 263 F.3d 965, 971
(9th Cir. 2001), and Mondragon, 228 F.3d at 980-81, to support this argument is misplaced. In Gunn, the government and
the defendant filed a written plea agreement stating that the
government would not oppose the two counts running concurrently with each other. 263 F.3d at 980. The PSR recommended consecutive sentences, which added a total of 18
years to the sentence. Id. at 967, 971. At the sentencing hearing, the prosecutor stated that the government concurred in
the recommendation of the PSR. Id. at 980. We held that the
government breached the plea agreement, because “[f]or a
prosecutor to tell a judge at sentencing that he concurs in a
presentence report is an argument for sentencing in accord
with the presentence report.” Id. at 970. Here, by contrast, the
government did not concur in the PSR’s addition of a 2-point
adjustment to Ellis’s offense level for Count 7.
[5] Similarly, in Mondragon, the government agreed to
make no recommendation regarding the defendant’s sentence.
228 F.3d at 979. But at the sentencing hearing, it endeavored
to “point out to the Court the serious nature of some of the
listed offenses” in the defendant’s lengthy criminal history
and “that approximately 25 percent of the time the defendant’s been arrested he has run or resisted and that 45 percent
of the time he has failed to appear or warrants have been
issued or he’s had a probation violation.” Id. Reasoning that
the prosecutor’s comments “did not provide the district judge
with any information which he did not already have before
him,” we concluded that they could have been made for only
one reason: “to influence the district court to impose a harsher
sentence than that suggested by appellant’s counsel.” Id. at
980. As such, we held that the government had breached the
plea agreement. Id. at 981. Mondragon is not on point,
because here the government expressly reserved the right to

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argue for a higher sentence; it agreed only to refrain from
arguing for application of any specific offense characteristic
or adjustment beyond those set forth in the plea agreement’s
calculation. The government did not breach this agreement,
because it made no argument that the district court should
increase the offense level calculation set forth in the PSR and
plea agreement.
Accordingly, we reject Ellis’s claim that the government
breached the plea agreement.
IV
Ellis also challenges the district court’s above-Guidelines
151-month sentence. As noted above, the PSR determined
that the sentencing range for Ellis’s offense was 97 to 121
months, and recommended a 97-month sentence. The district
court explained its different analysis in its tentative ruling and
during the sentencing hearing.
In its tentative ruling, the district court considered the government’s motion for a 2-level upward departure in Ellis’s
criminal history category. The court agreed that an upward
departure was warranted, but held that a 1-level departure was
adequate. In reaching this conclusion, the court first referenced the Guidelines sections that authorized such a departure. It noted that under USSG § 4A1.3(a)(1), if “reliable
information indicates that the defendant’s criminal history
category substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant will commit other crimes,” an upward departure may be
warranted. The court also noted that only the fifteen-year sunset provision in USSG § 4A1.2(e)(1) precluded it from imposing an additional “3 criminal history points” for Ellis’s
juvenile armed robbery conviction. Because the PSR’s calculation of Ellis’s criminal history calculation omitted this “significant, undisputed piece of defendant’s record: defendant’s
1982 armed robbery conviction, for which he received a 5-

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year custodial sentence,” and “fail[ed] to capture the brutality
of defendant’s 1994 [rape] offense, which defendant apparently committed as retaliation for a ‘humiliat[ing]’ comment
made by the victim,” the district court concluded that a 1level departure to Criminal History Category III was warranted, resulting in a new sentencing range of 108 to 135
months imprisonment.
The district court then considered the statutory factors of 18
U.S.C. § 3553(a), and determined that an above-Guidelines
sentence was warranted on account of Ellis’s commission of
seven premeditated “armed bank robberies in 7 months” with
a “simulated handgun and written and verbal threats,” his
restraint of bank employees on one occasion, and his use of
“dangerous tactics to avoid apprehension” on another. But
even “[w]ithout reference to the guideline range . . . the statutory factors of § 3553(a) point to a sentence of 151 months
incarceration, followed by a 5-year period of supervised
release.”
At the sentencing hearing, the district court reaffirmed its
tentative ruling. The court stated that a 97-month sentence
was not sufficient, and that even a 151-month sentence “was
barely sufficient within the meaning of the law under § 3553.”
While noting it had considered Ellis’s background, the court
emphasized the “seriousness of the offenses,” the need to provide “just punishment” and “adequate deterrence from criminal conduct by all and protecting the public from further
crimes of this individual.”
A
[6] We first consider Ellis’s challenge to the district court’s
upward departure from Criminal History Category II to III.
Although he frames this as a procedural challenge to the district court’s calculation of the Guidelines range, we conclude
that this is not the correct approach. In analyzing challenges
to a court’s upward and downward departures to a specific

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offense characteristic or other adjustment under Section 5K,
we do not evaluate them for procedural correctness, but
rather, as part of a sentence’s substantive reasonableness. See
Mohamed, 459 F.3d at 986. In Mohamed, we held that “the
better view is to treat the scheme of downward and upward
‘departures’ as essentially replaced by the requirement that
judges impose a ‘reasonable’ sentence.” Id. We reasoned that
because “[t]he discretion that the district court judge employs
in determining a reasonable sentence will necessarily take into
consideration many of the factors” enumerated in the section
on offense level departures, “calculat[ing] what departure
would be allowable under the old mandatory scheme” and
then “go[ing] through much the same exercise” to decide if
the sentence was “reasonable” would be not only “redundant,” but pointless. Id. at 986-87. Even if a district court
made a procedural error in applying a departure, the court
“would be free on remand to impose exactly the same sentence,” which we would then review for reasonableness. Id.
at 987. Accordingly, we decided that henceforth, we would
review departures for reasonableness in the first instance and,
if the sentence was reasonable, treat erroneous departures as
“harmless” in light of a district court’s “post-Booker discretion to sentence a defendant outside of the applicable guidelines range.” Id.
[7] The same reasoning is equally applicable to criminal
history category departures under USSG § 4A1.3. Like
offense level departures, criminal history departures are
entirely discretionary under the Guidelines. See USSG ch. 1,
Pt. A, cmt. 4(b). (“When a court finds an atypical case, one
to which a particular guideline linguistically applies but where
conduct significantly differs from the norm, the court may
consider whether a departure is warranted.”); § 4A1.3(a)(1)
(“If reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood
that the defendant will commit other crimes, an upward departure may be warranted.”). And as with the offense level calcu-

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lations, a criminal history category departure requires the
district court to consider many of the § 3553(a) factors: the
risk of recidivism, see 18 U.S.C. § 3553(a)(2)(C); the nature
of the defendant’s criminal history, see id. § 3553(a)(1); and
the nature of the offense, see id. For this reason, and because
a court “would be free on remand to impose exactly the same
sentence by exercising [its] discretion under the now-advisory
guidelines,” Mohamed, 459 F.3d at 987, it would likewise be
redundant to review the criminal history departure both for
procedural error and substantive unreasonableness.
[8] Thus, following the reasoning in Mohamed, we hold
that where a district court “has framed its analysis in terms of
a downward or upward departure” for a criminal history category, we will analyze such a departure as “an exercise of postBooker discretion to sentence a defendant outside of the applicable guidelines range.” Id. Our holding makes explicit what
we implicitly held in United States v. Tankersley, 537 F.3d
1100, 1114 (9th Cir. 2008). In Tankersley, after explaining
that “we do not need to consider whether the district court
correctly applied the departure provision in § 5K2.0; rather
we review the district court’s deviation from the applicable
guidelines range for reasonableness,” we cited United States
v. Johnson, 427 F.3d 423, 425-27 (7th Cir. 2005), for the
proposition that it is not necessary to consider whether the
district court correctly applied USSG § 4A1.3 (the provision
at issue here), only whether the defendant’s ultimate sentence
was reasonable. See Tankersley, 537 F.3d at 1114.
B
We next turn to Ellis’s argument that the court did not sufficiently explain its substantial deviation from the applicable
advisory guideline range and also failed to address his
“clinically-diagnosed gambling addiction,” which he argued
was the “root cause” of his bank robberies. A district court
commits procedural error if it fails to provide adequate explanation for the sentence imposed. United States v. Carty, 520

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F.3d. 984, 993 (9th Cir. 2008) (en banc) (noting that it would
be procedural error for a district court to “fail adequately to
explain the sentence selected, including any deviation from
the Guidelines range”). Here, however, the record belies both
of Ellis’s claims: the district court expressly identified all of
the sentencing factors it considered, along with the particular
aggravating factors it found significant, namely, Ellis’s commission of seven premeditated “armed bank robberies in 7
months” with a “simulated handgun and written and verbal
threats,” his restraint of bank employees on one occasion, and
his use of “dangerous tactics to avoid apprehension” on
another. And the district court required, as special conditions
of supervised release, that Ellis seek treatment both for his
“gambling addition,” as well as his “mental health” problems,
indicating that it did, in fact, consider his gambling addiction.
C
Finally, we consider Ellis’s challenge to the district court’s
decision to impose an above-Guidelines sentence. In the
absence of a “significant procedural error,” this court reviews
a sentence for substantive reasonableness. Gall, 552 U.S. at
51. “This review requires deference to the district court’s
decision, and should not resemble a de novo review.” United
States v. Cherer, 513 F.3d 1150, 1159-60 (9th Cir. 2008).
Although “a sentence outside the Guidelines carries no presumption of unreasonableness,” Irizarry v. United States, 553
U.S. 708, 714 (2008), the “greater the variance, the more persuasive the justification will likely be because other values
reflected in § 3553(a) . . . may figure more heavily in the balance,” Carty, 520 F.3d at 992. That does not mean the district
court must “tick off each of the § 3553(a) factors to show that
it has considered them.” Id. It does, however, require that
“when a party raises a specific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support of a requested
sentence, then the judge should normally explain why he
accepts or rejects the party’s position.” Id. at 992-93.

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Ellis takes issue with two of the reasons underlying the district court’s decision to vary upward under Booker: his 27year-old (juvenile) conviction for armed robbery and the “brutality” of his 15-year-old rape conviction.
With respect to the armed robbery conviction, Ellis cites
United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir.
2009), for the proposition that a “stale conviction” is more
properly a reason for a “downward variance” than a sentence
enhancement. Amezcua, however, is not on point. There, we
held that it was substantively unreasonable to adhere to a
Guidelines instruction to impose a full 16-level enhancement
for a 25-year-old conviction when the defendant’s “subsequent history show[ed] no convictions for harming others or
committing other crimes.” Id. at 1054-55. Here, by contrast,
the district court cited a serious juvenile conviction for armed
robbery (one that preceded a forcible rape conviction) as only
one of the reasons Ellis’s seven subsequent bank robberies
merited an above-Guidelines sentence.
As for the rape conviction, Ellis argues that the record does
not support the district court’s determination that the rape was
especially brutal. We disagree; while the description of the
rape in the PSR is brief, we cannot say the district court’s
conclusion was unreasonable, or that the district court relied
on “clearly erroneous facts.” Carty, 520 F.3d. at 993. Moreover, given the overall reasonableness of the sentence, as
explained below, and the district court’s conclusion that even
“[w]ithout reference to the guideline range” it would have
imposed a sentence of 151 months, any error in relying on the
rape conviction would be harmless. See Mohamed, 459 F.3d
at 987 (“If we were to declare the sentence reasonable, then
the erroneous departure would be harmless.”).
[9] Ultimately, though, Ellis’s point-by-point objections to
the reasons the district court gave for “departing” upward are
beside the point. The question for our purposes is whether a
moderately above-Guidelines sentence for a defendant who

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commits seven bank robberies, after serving prison time for
rape and armed robbery, is reasonable under the broad discretion afforded the district court. See United States v. Sylvester
Norman Knows His Gun, III, 438 F.3d 913, 918 (9th Cir.
2006). Here, the court deviated only 30 and 16 months from
the high end of the PSR and its own Guidelines ranges,
respectively, neither of which we would deem “major.” See
Carty, 520 F.3d at 992. We conclude that the district court’s
characterization of Ellis’s seven armed bank robberies as “serious[ ]” offenses that traumatized their victims and its
emphasis on the need to provide “just punishment,” to deter
criminal conduct generally, and to “protect[ ] the public from
further crimes of this individual” reflected a “rational and
meaningful consideration of the factors enumerated in 18
U.S.C. § 3553(a),” United States v. Ressam, 629 F.3d 793,
827 (9th Cir. 2010) (quoting United States v. Tomko, 562 F.3d
558, 568 (3d Cir. 2009)) (internal quotation marks omitted).
AFFIRMED.