VICAR sufficiency

In United States v. Cordova, the Tenth Circuit found sufficient evidence to sustain Mr. Cordova's conviction for committing a violent crime (murder) in aid of racketeering activity. Circumstantial evidence supported the jury's finding (1) of an agreement between Mr. Cordova and a gang member that Mr. Cordova would murder the victim in exchange for money and drugs, and (2) that the gang member made the agreement on behalf of the gang (and not just to satisfy the gang member's personal vendetta). It didn't matter that personal reasons may have also influenced the gang member.

Unintelligible recordings

In Cordova, the Tenth Circuit also found no error in the district court's admission of a mostly unintelligible recording of a conversation between a cooperating witness and the gang member. The recording's admission was appropriate since the gang member himself was available to testify (and be cross-examined) about it, as was the agent who debriefed the gang member right after the conversation was recorded. And even even if admission of the recording was error, it was harmless error).

Brady/Giglio/Rule 16

Also in Cordova, the Tenth Circuit rejected Mr. Cordova's claim that the district court should have granted a new trial on grounds that the government failed to disclose, before trial, evidence that it presented at trial (an agent's impressions of Mr. Cordova during an interview with him). The Tenth Circuit concluded that, regardless of whether the evidence was exculpatory, the evidence was not material.

Newly discovered evidence

Finally in Cordova, the Tenth Circuit rejected Mr. Cordova's claim that the district court should have granted a new trial based on the gang member's post-trial statement that "he never asked" Mr. Cordova to murder the victim. The Tenth Circuit cited the government's substantial circumstantial evidence demonstrating an agreement and the gang member's other inculpatory statements. And the Tenth Circuit warned (as it has before) that "generally, motions for a new trial based on newly discovered evidence are disfavored and granted 'only with great caution.'"

Deadlines, deadlines, deadlines

1. Where the district court sentences the defendant, but defers restitution, the defendant may wait until after restitution is ordered before filing a notice of appeal. The defendant may also file separate notices of appeal--one after sentencing, and one after restitution, and then either litigate those appeals separately or move to consolidate them. What the defendant may not do is rely on the notice filed after sentencing to appeal the later restitution judgment.

2. "[A] remand for resentencing delays finality [for 2255 statute-of-limitations purposes] until the defendant is resentenced and direct review of the new sentence is complete." (But watch out for "purely ministerial" remands.)

3. "If any part of the sentence—including restitution—has not been finalized, then the judgment of conviction is not final." In other words, a remand for recalculation of restitution will, just like any other resentencing remand, also delay finality for 2255 statute-of-limitations purposes until the defendant's restitution is recalculated and direct review of the new sentence (the new restitution amount) is complete.

So explained the Tenth Circuit in United States v. Anthony, finding Mr. Anthony's 2255 petition timely.

Anders briefs offend our clients, reflect poorly on us as lawyers, and should be avoided at all costs, am I right? Think again. An Anders brief in the Fourth Circuit recently led to a new sentencing hearing. The case is a reminder of the benefits of Anders briefs.

But before we talk about the Fourth Circuit case, let's review Anders itself. In Anders v. California, 386 U.S. 738 (1967), the Supreme Court held that, before appointed counsel may be excused from representing an indigent defendant on direct appeal on grounds that the appeal lacks merit, three things must happen:

First, counsel must file a brief "referring to anything in the record that might arguably support the appeal," and serve a copy of the brief on the client.

Second, the appellate court must provide the client an opportunity to file a pro se brief.

Third, the appellate court must independently (and "vigorously") conduct "a full examination of all the proceedings, to decide whether the case is wholly frivolous."

As for the first requirement, we'd all like to think that we are competent issue-spotters, but the truth is that when we are forced to brief why an issue isn't worth pursuing, we are more likely to discover an assessment error and change course. On the other hand, if our initial assessment was right, then our brief will help our client understand why the appeal lacks merit. An Anders-avoidance approach, in contrast, motivates us to brief a single unwinnable issue (I'm looking at you, substantive unreasonableness*) without deeply engaging with "anything [else] in the record that might arguably support the appeal." We are more likely to overlook a meritorious issue when we brief a single unwinnable issue than when we draft a robust Anders brief addressing all possible issues.

As for the third requirement, Anders briefs trigger a unique obligation on the part of the appellate court. They ensure that the entire record of proceedings is reviewed not just by counsel but also, and independently, by the appellate court. Appellate courts take this obligation seriously. See, e.g., United States v. Whitaker, 861 Fed. Appx. 240, 243 (10th Cir. 2021) ("When counsel submits an Anders brief, we conduct an independent review and examination of the record de novo to determine whether there are non-frivolous grounds for appeal." (cleaned up)). So seriously, in fact, that an Anders brief can lead to reversal based on issues that counsel, despite diligent issue-spotting, overlooked.

This happened in the Tenth Circuit in United States v. Smith, 208 F.3d 228, 2000 WL 286170 (10th Cir. 2000). In Smith, counsel relied on previously-binding Tenth Circuit precedent to conclude in an Anders brief that Mr. Smith had no non-frivolous challenge to his mandatory-minimum sentence. But that precedent had been overturned a month before counsel filed the brief. The Tenth Circuit spotted the issue while fulfilling its Anders duties, and ordered supplemental briefs. The government conceded error, and the Tenth Circuit reversed. 

Which brings us to the Fourth Circuit Anders-instigated decision released last month. In United States v. Freeman, appellate counsel filed an Anders brief concluding that her client had no non-frivolous grounds for appeal. The Fourth Circuit independently (after receiving Ms. Freeman's pro se brief) decided otherwise and directed the parties to brief whether, on the face of the existing record, Ms. Freeman had received effective assistance of counsel at sentencing (appellate counsel did not represent Ms. Freeman in the district court). As it turned out, district court counsel had made legal errors patent on the record when he waived meritorious objections to the PSR. The errors added nearly ten years to the low end of Ms. Freeman's sentencing guidelines range. In the end, the Fourth Circuit reversed and remanded for resentencing, a result affirmed last month by the en banc court. This result was directly attributable to the Fourth Circuit fulfilling its duties in response to counsel's Anders brief.

As the Supreme Court put it in Anders, filing an Anders brief does "not force appointed counsel to brief his case against his client." Rather, Anders briefs protect our clients. We should embrace them in appropriate cases.

*The Tenth Circuit will be happy to review and reject on the merits a claim that a sentence is substantively unreasonable, whether that sentence is below, within, or even above the applicable guidelines range. But it will also readily agree with an Anders brief that such a claim is frivolous. See, e.g., United States v. Perez-Hernandez, 845 Fed. Appx. 710, 715 (10th Cir. 2021) ("any challenge to the substantive reasonableness of either sentence would be wholly frivolous"). Can we ever convince the Tenth Circuit that a sentence is substantively unreasonable because it is too high? I'm not holding my breath, at least not with respect to below or with-guidelines sentences. A few years ago, I had the following exchange with Judge Hartz at oral argument on what I thought was a strong substantive-unreasonableness claim:

Me: It's tough to argue what makes a substantively unreasonable within-guidelines sentence because we don't have a lot of guidance on that . . .

Judge Hartz: You have a lot of guidance on it, which says you can't!

Substantive Unreasonableness as Unicorn


Going forward, should I give my client false hope that the Tenth Circuit might reverse on substantive-unreasonableness grounds? Or should I give my client the truth about "anything in the record that might arguably support the appeal" by filing a robust Anders brief (thereby triggering the appellate court's obligation to conduct its own review)? Discuss amongst yourselves.

Recently from the Tenth Circuit:

Speedy Trial Act

Where is a an indictment "pending" for Speedy Trial Act purposes after a Rule 20 transfer to another district? In that other (transferee) district. So said the Tenth Circuit in United States v. Black, reversing the Kansas District Court's denial of Mr. Black's motion to dismiss after he was returned following transfer proceedings in W.D. Mo. Read Black closely if you want to understand the interplay between Rule 20 and the Speedy Trial Act.

Predicate offenses

Last summer in Borden v. United States, the Supreme Court held that reckless offenses do not qualify as "violent felonies" for ACCA predicate purposes. Last week in United States v. Toki, the Tenth Circuit confirmed that, after Borden, reckless offenses likewise do not qualify as "crimes of violence" under 18 U.S.C. § 924(c)'s elements clause.

Drug quantity

Need a refresher on the findings that a district court must make in order to attribute drug quantity to a coconspirator for relevant-conduct purposes? Look no further than United States v. Ellis. There we are reminded that, under USSG § 1B1.3(a)(1), the quantity at issue must have been (1) within the scope of jointly undertaken criminal activity; (2) in furtherance of that activity; and (3) reasonably foreseeable in connection with that activity. Each of these are "independent and necessary" elements of relevant conduct, and the sentencing judge must make particularized findings about each element. Categorically equating an individual's conduct with the scope of the conspiracy as a whole would be legal error. No such error was made in Mr. Ellis's case, however, and so here the Tenth Circuit affirms.

In Ellis, the basis for the Tenth Circuit's affirmance was the district court's adoption of detailed findings in the presentence report. This is an important reminder that if we wish to challenge a fact-intensive relevant-conduct finding, we should object not only to the legal conclusions in the presentence report, but also to the factual allegations said to support those conclusions.

We've blogged about Batson before. Now we are pleased to announce an hour-long CLE seminar to discuss perfecting our Batson challenges. Please join us via Zoom at noon on February 25, 2022. RSVP Dana Burton at

Batson Challenges CLE


Recently at the Tenth Circuit:

Access to evidence

Rule 16 does not authorize a district court to order access by a criminal defendant to property held by a third party, and the denial of Mr. Bullcoming's motion for access did not violate due process. So said the Tenth Circuit in United States v. Bullcoming. Can access be had via a Rule 17 subpoena? That question wasn't raised, and the decision does not say.

Greyhound was not acting as an agent of the government with respect to the preservation and production of surveillance videos, and thus its apparent destruction of such videos would not have violated due process. United States v. Fernandez.

Fourth Amendment

Mr. Bullcoming argued that a search pursuant to a search warrant was illegal because the affidavit in support of the warrant contained information gained from prior, unlawful searches. Whether or not those prior searches were unlawful, the information they yielded could be excised from the later affidavit, and the affidavit still provided probable cause for the final search. And thus the district court's denial of Mr. Bullcoming's motion to suppress is affirmed.

A search warrant for digital evidence related to "human trafficking" was sufficiently particular for Fourth Amendment purposes (even if it wasn't, the officers' good faith would save the search). And the scope of the cellphone extraction here was reasonable. United States v. Palms.

Where Mr. Fernandez did not make the same, specific challenge to the agents' handling of a duffle bag in the district court (that the duration of the handling rendered it a search), he waived the argument for purposes of appeal. Additionally, Mr. Fernandez abandoned the duffle bag when he told the agents that he didn't have any luggage with him.

FRE 412 (victim's sexual behavior or predisposition)

The district court did not violate the Confrontation Clause or due process in Palms, a sex-trafficking case, when it excluded evidence of the victim's prior commercial sex work from trial under Rule 412. Under the facts of this case, the evidence was neither relevant nor probative.

Sufficiency of evidence

The child's testimony at this aggravated-sexual-abuse trial, while not explicit, provided sufficient evidence of a "sexual act" to sustain the conviction. United States v. Burtrum.

Evidence that a duffle bag on a Greyhound bus containing drugs belonged to Mr. Fernandez was sufficient to sustain his methamphetamine conviction. United States v. Fernandez.

Open pleas & sentencing

Is your client pleading guilty without a plea agreement? Good news: the district court cannot penalize your client for not entering into an agreement with the government. In United States v. Cozad, the Tenth Circuit agreed that "it is unreasonable for a district court to impose a harsher sentence based on a defendant's decision to plead guilty without a plea agreement." Check out Cozad for a nice summary of other factors that are impermissible considerations at sentencing.

USSG § 2K2.1(b)(6)(B) (possession of firearm in connection with another felony offense)

In United States v. Sanchez, the Tenth Circuit relied on the commentary to the unlawful-possession guideline to find the evidence sufficient to prove that Mr. Sanchez possessed a firearm in a stolen car "in connection with" (the GL requirement) the felony theft of the car, because the firearm "had the potential to facilitate" (the commentary definition) the theft if Mr. Sanchez were confronted about it. No mention of Kisor or Stinson in the opinion, but consider, going forward, whether this guideline commentary is subject to challenge on grounds that it improperly expands the plain text of the guideline itself. To understand the challenge in a different context, check out United States v. Campbell, ___ F.4th, 2022 WL 71824 (4th Cir. 2022) (commentary regarding Guideline definition of “controlled substance offense” extending definition to inchoate attempts "is plainly inconsistent with" the Guideline).

Eighth Amendment

Mr. Burtrum's mandatory life sentence for a repeat conviction of aggravated sexual abuse does not violate the Eighth Amendment.

Conditions of supervised release

What "specific findings" must a district court make before banning possession of all sexual-explicit images (including otherwise legal adult pornography)? Read United States v. Englehart to find out.

What "statement of generalized reasons" is necessary to support a condition requiring a psychosexual evaluation or mental-health treatment? Again, read Englehart, and note that conditions such as these may not authorize the probation officer to direct the person under supervision to submit to more-intrusive conditions like inpatient treatment, penile plethysmograph testing, and psychotropic drugs: "District courts . . . may not grant the probation officer the discretion to decide whether conditions involving significant liberty interests will be imposed."


To obtain an order of mandatory restitution for sex trafficking under 18 U.S.C. § 1593, the government must prove, by a preponderance of evidence, that the convicted person's conduct directly (but-for) and proximately caused the victim's losses. In United States v. Anthony, the government failed to meet that burden because its expert "did not even attempt to disaggregate the harms Mr. Anthony caused from the other harms R.W. suffered" at the hands of other abusers.

The record supports the restitution order under 18 U.S.C. § 2248 in this aggravated-sexual-abuse case.

First Step Act (reduced sentences for crack-cocaine convictions)

Curious about the ins and outs of motions for reconsideration and district court jurisdiction under Section 404 of the First Step Act? How about government waivers of procedural issues in this context? Or motions for sentence reductions generally? Take a look at United States v. Warren for a deep dive into all of these niche legal issues. 

Do you ever have clients with prior Missouri (or other state) drug convictions? Or do you just want to brush up on the law of predicate drug convictions? Join Dan Goldberg, AFPD for the Western District of Missouri, on Zoom this Friday, January 21, 2022 at noon to learn practical and specific arguments that have prevented the government from using Missouri drug crimes (as well as other state drug crimes) to enhance your client’s sentence.

Recent trends in this area of Supreme Court and Eighth Circuit law will be identified, as well as what issues to anticipate in 2022 and beyond.

This program is approved for Missouri and Kansas CLE credit.

Please RSVP to

“The Justice Department will begin transferring thousands of inmates out of federal prisons this week as part of a sweeping criminal justice overhaul signed by President Donald Trump more than three years ago,” according to WaPo yesterday.

The First Step Act was enacted in December 2018, implementing changes in mandatory minimum sentences and other relief, including Earned Time Credits to people in prison who participate in programs designed to reduce recidivism. Summed up nicely by Reuters: “By earning those credits, they can qualify to be released early into halfway houses or home confinement. In some cases, inmates can also earn up to 12 months of credit that would be applied toward supervised release.”

After three years, BOP had not yet awarded any credits, even though some 60,000 folks have done the work. That is set to change now that BOP has rules in place just as we reach the congressionally imposed January 15, 2022 deadline.

This is not a panacea. To qualify, people still have to score low on BOP’s risk assessment, PATTERN, which has been criticized as racially skewed. And there are many whose convictions make them ineligible for Earned Time Credit. But finally getting the program in place, with retroactive credit, will mean that thousands are eligible for relief. From DOJ’s press release:

As part of the implementation process, the Federal Bureau of Prisons (BOP) has begun transferring eligible inmates out of BOP facilities and into either a supervised release program or into Residential Reentry Centers (RRCs) or home confinement (HC).   


Implementation will occur on a rolling basis, beginning with immediate releases for inmates whose Time Credits earned exceed their days remaining to serve, are less than 12 months from release, and have a Supervised Release term.

And in other good news, BOP Director Carvajal, a holdover from the last administration who oversaw a disastrous handling of Covid in BOP and failed to implement reform (including awarding earned time credits), is resigning. Now this administration can appoint someone who is dedicated to the prison reform promised by this administration.

More reading:

Michael Balsamo and Michael R. Sisakap, US prisons director resigning after crises-filled tenure (AP News Jan. 5, 2022)

Keri Blakinger, The Marshal Project, The Federal Bureau of Prisons is getting a new leader — and another shot at reforms (NBC News Jan. 13, 2022)

Sara Lynch, New U.S. Rule lets federal inmates earn credits for early release (Reuters Jan. 13, 2022)

Archbishop Desmond Tutu passed December 26, 2021 at age 90. In the many remembrances of him, these words were attributed to him:

"There comes a point where we need to stop just pulling people out of the river. We need to go upstream and find out why they're falling in."

What a perfect description of holistic public defense. We can keep pulling our clients through the current charges, trying to reach the best outcome for them, fighting for them, holding them up as best we can.

But at some point, we must look beyond the current case. We need to figure out how our clients reached us in the first place. We need to look upriver at the failed systems, the generations of poverty, the inherent racism, the choices and the lack of choices that brought them to us. “Find out why they are falling in.”

And then maybe we can figure out how to keep the system from throwing them back in.

If you have a minute, watch this charming clip of Desmond Tutu and the Dalai Lama.

And if you are interested in holistic public defense, the Kansas Holistic Defenders is hosting The Bronx Defenders to offer three days of free training (CLE credit pending) January 18 through 20, 2022 by Zoom. This includes sessions on:

  • Introduction to Holistic Defense
  • Negotiations from a Client-Centered Perspective
  • Bail Advocacy
  • Effective Investigation
  • Police, Community Engagement + Community Organizing
  • Working with Community Providers and Resource Building
  • Resiliency + Longevity in the Work

It looks like a great program, and the Bronx Defenders know their stuff. RSVP here.

RIP Desmond Tutu.

We’re finally catching up with the Tenth Circuit:

FISA (and then some)

In these consolidated appeals comprising 282 pages of majority & dissenting opinions (including extensive tables of contents and acronyms), the Tenth Circuit tackles terrorism, warrantless FISA surveillance, and extraterritorial search warrants, ultimately affirming both appellants’ convictions for conspiring and providing material support to the Islamic Jihad Union. United States v. Muhtorov; United States v. Jumaev.

Speedy trial

It’s been a while since the Tenth Circuit has reviewed a serious constitutional speedy-trial claim, and the one presented in Muhtorov and Jumaev is a doozy: a pretrial delay of six-plus years; government claims of national security; extreme discovery delays on the government’s part; and questions about what it takes to assert a speedy-trial right in the face of such delays. The majority rejects the claim, while Judge Lucero, in dissent, finds an “unambiguous” constitutional speedy-trial violation.

Predicate offenses: Kansas priors

Does your client have a prior Kansas conviction that has been invoked as a predicate offense punishable by imprisonment for a term exceeding one year? Check your client’s Kansas journal entry of judgment for evidence that your client’s prior conviction was a qualifying* presumptive-probation offense, or a qualifying* SB 123 (mandatory drug treatment) offense. If so, the prior conviction was not punishable by imprisonment for a term exceeding one year, and cannot be used as a predicate offense.

This issue was decided in September with respect to an SB 123 prior in United States v. Hisey, 12 F.4th 1231 (10th Cir. 2021) (holding in § 2255 appeal that defendant was “actually innocent” of § 922(g)(1)).

And this issue was decided last month with respect to a presumptive-probation prior in United States v. Hilleland, Appeal No. 21-3063, 2021 WL 5561019 (10th Cir. Nov. 29, 2021) (reversing § 922(g)(1) conviction on direct appeal: “Hilleland, like Hisey, does not fall into the class of persons prohibited from possessing a firearm under § 922(g). He could not have committed the § 922(g) offense that he was sentenced for.”).

*Questions about what kinds of Kansas priors qualify as Hisey/Hilleland priors? Contact your friendly Kansas FPD.

Drug sentencing: personal-use quantities

Personal-use drug quantities are not relevant conduct under USSG § 1B1.3 for a defendant convicted of distributing drugs or possessing with intent to distribute drugs. But to carve out those quantities, the defendant must come forward at sentencing with “some evidence that a specific quantity was intended for personal use.” The government retains the ultimate burden of proof as to drug quantity for relevant-conduct purposes, and must either rebut or accept the defendant’s evidence. After that, the district court must determine whether the personal-use possession was part of or connected to the distribution offense. That is the lesson of United States v. Wilson.

Restitution & crimes of violence & federal assault & involuntary manslaughter

“Because the MVRA incorporates the federal criminal code's definition of ‘crime of violence,’ see 18 U.S.C. § 3663A(c)(1), the Supreme Court's decision in Borden effectively means that the MVRA does not apply to any criminal offense that has a mens rea of recklessness. And because we have held that the offense of assault resulting in serious bodily injury, in violation of 18 U.S.C. § 113(a)(6), can be committed with a mens rea of recklessness, see Mann, 899 F.3d at 904, that means that offense does not fall within the scope of the MVRA. In other words, the offense of assault resulting in bodily injury is not an offense that triggers application of the MVRA.” Neither is involuntary manslaughter a crime of violence. United States v. Benally, ___ F.4th ___, 2021 WL 5872484 at *6 (10th Cir. 2021).

Benally also reminds us that harm for restitution purposes under either the MVRA or the VWPA is not limited to harm identified as an essential element of the offense of conviction. Rather, these provisions authorize restitution more broadly for losses caused by the conduct that is the basis for the conviction.

Special conditions of supervised release

In United States v. Benvie, the Tenth Circuit found plain error in the district court’s failure to adequately explain why it imposed several special conditions of supervised release. Stating simply that “the total combined sanction, without a fine, is sufficiently punitive” was not enough. As the Tenth Circuit pointed out, “[i]t is reasonably probable that if the district court had explained its reasoning for the conditions and ensured that its reasoning was supported by the record, then the court may have refrained from imposing some, if not all, of the conditions.” Remember—special conditions must further the statutory requirements of 18 U.S.C. § 3583(d), and the district court must explain how they do that.

Is your client probation-eligible but your judge probation-shy? Perhaps the judge read the Sentencing Commission's July 2020 report on Federal Probation and Supervised Release Violations, and learned that about one in five people violate supervision every year.

But that report lumped folks on probation with folks on supervised release on the assumption that these supervision statuses are "functionally equivalent." This assumption is mistaken, as Penn State Law Professor Jacob Schuman explains in The Secret Success of Federal Probationers, a must-read for anyone seeking probation on behalf of a client in federal court.

Professor Schuman teased out the probationer data and confirmed that probationers are much more successful on supervised release than the Commission's report suggests. For instance:

  • The Commission calculated an overall violation rate of 15-20%
  • Professor Schuman calculated a probation violation rate of only about 5%
  • The Commission found violators overall committed 13.6 % serious felony violations (grade A), 31.5 % other felony violations (grade B), and 54.9 % misdemeanor and technical violations (grade C)
  • Professor Shuman found the rates for probation violators were 6.99 %, 28.07 percent, and 64.94 percent, respectively

In sum, "[f]ederal probationers were 95 percent likely to comply with the terms of their supervision, and when they did misbehave, two-thirds of the time it was for a misdemeanor or technical violation. The report largely reflects the outcomes for supervised-release violators, and is not accurate as to federal probationers."

Once we've corrected any misperception the judge may have about probationers, it might be a good time to remind the judge as well that probation itself is no walk-in-the-park windfall. It is punishment, as the Supreme Court recognized in Gall v. United States:

Offenders on probation are . . . subject to several standard conditions that substantially restrict their liberty. See United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (“Inherent in the very nature of probation is that probationers ‘do not enjoy the absolute liberty to which every citizen is entitled’ ” . . .). Probationers may not leave the judicial district, move, or change jobs without notifying, and in some cases receiving permission from, their probation officer or the court. They must report regularly to their probation officer, permit unannounced 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 subject to individual “special conditions” imposed by the court.

552 U.S. 38, 48-49 (2007). Recall that in Gall, the Supreme Court held that a district court reasonably sentenced Mr. Gall to probation, a downward variance from his 30-37-month guidelines range for conspiring to distribute ecstasy for seven months (and netting over $30,000.00). The key is to show the district court how probation satisfies multiple sentencing factors. See United States v. Cookson, 922 F.3d 1079, 1093 (10th Cir. 2019) ("we have cautioned against excessive reliance on a single factor in sentencing").

Finally, while the guidelines range is the starting place, the judge "may not presume that the Guidelines range is reasonable." Gall, 552 U.S. at 50 (emphasis added). "[T]he Guidelines are only one of the factors to consider when imposing sentence, and § 3553(a)(3) directs the judge to consider sentences other than imprisonment." Id. at 59.