Whether a sentencing court must provide a reasonable explanation, on the record, as to why it is not considering a sentencing factor, particularly an argument advanced by a defendant during sentencing to reject the automatic application of a sentencing enhancement based on policy considerations

QUESTION PRESENTED In Gall v. United States 536 U.S. 38, 51 (2007) and Rita v. United States, 551 U.S. 338, 347 (2007) this Court held that sentencing courts must make an individualized assessment based on the facts presented. Furthermore, the judge “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentence.” In Kimbrough v. United States, 552 U.S. 85, 109 (2007) the Court further elaborated, citing Rita, that a “district court’s decision to vary from the advisory guideline may attract the greatest respect when the sentencing judge finds a particular case ‘outside the heartland’ to which the Commission intends individual Guidelines to apply”. The logical consequence of the above opinions is that when a defendant presents a properly preserved Kimbrough argument the sentencing court must evaluate the same individually, deny or accept the same and explain the chosen sentence to allow for meaningful appellate review. Here the district court failed to explain a rejection of the arguments made by Mr. De Jesus-Torres for the sentencing court to follow the parties’ recommendation. Then the First Circuit assumed, without any discussion of the record, that the sentencing court had evaluated and rejected Mr. De Jesus-Torres’ argument under Kimbrough. This action by the First Circuit Court of Appeals is contrary to the letter and spirt of Gall and Kimbrough and thus, requires that the Judgment issued by said court be vacated. The question is presented as follows: Whether a sentencing court must provide a reasonable explanation, on the record, as to why it is not considering a sentencing factor, particularly an argument advanced by a defendant during sentencing to reject the automatic application of a sentencing enhancement based on policy considerations. 1 STATEMENT OF