When reviewing a sentence on appeal, can the Court consider whether the sentence was based on procedural error rather than substantive reasonableness?

MultiRegion, United States of America

The following excerpt is from United States v. Hernandez, 894 F.3d 1104 (9th Cir. 2018):

Respectfully, the majority opinion conflates the procedural analysis and the substantive reasonableness analysis that govern sentencing proceedings. Sitting en banc, we clarified that when reviewing a sentence on appeal, "we first consider whether the district court committed procedural error." United States v. Carty , 520 F.3d 984, 993 (9th Cir. 2008) (en banc). We delineated the following as examples of procedural error: failing to calculate the Guidelines Range or calculating the range incorrectly; treating the Guidelines as mandatory rather than advisory; failing to consider the factors set forth in 18 U.S.C. 3553(a) ; imposing a sentence based on clearly erroneous facts; or failing to give an adequate explanation for the sentence imposed. See id.

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