OPINION
Defendant-Appellant James T. McBride is before us for the second time. In his first appeal, McBride appealed his conviction and sentence for presenting false
*472
claims to the Internal Revenue Service, obstruction of justice, and bankruptcy fraud. We reversed his conviction on one count, but affirmed the remaining convictions. We also vacated McBride’s sentence and remanded his case' for resen-tencing so that the district court could determine whether, under the relevant application note and provision of the United States Sentencing Guidelines (“Guidelines”), a downward departure may be warranted because of the possibility that the court’s loss determination overstates the severity of the offense. At resentenc-ing, the district court announced two identical sentences: one under the Guidelines, and one that treated the Guidelines as advisory. McBride appeals his sentence, arguing that the district court violated his Sixth Amendment rights in light of
United States v. Booker,
I.
Defendant James T. McBride’s girlfriend, Katina Kefalos, was convicted by a jury of evading federal income taxes in proceedings before District Judge Algenon L. Marbley.
See United States v. McBride,
McBride was indicted by a federal grand jury on six counts: presenting a false claim against the government in violation of 18 U.S.C. § 287, obstruction of justice in violation of 18 U.S.C. § 1503, obstructing the due administration of the internal revenue laws in violation of 26 U.S.C. § 7212(a), and three counts of bankruptcy fraud in violation of 18 U.S.C. § 157. A jury convicted McBride of all six counts on May 23, 2002. The district court thereafter determined that McBride should be sentenced under offense level 22, Criminal History Category IV. The court then sentenced McBride to 78 months of imprisonment on Count 2; 60 months on Counts 1, 4, 5, and 6; and 36 months on Count 3, all to be served concurrently. One of the factors in determining McBride’s sentence was the amount of the intended loss of the aforementioned victims. The presentence report indicated that the intended loss of McBride’s actions, including the bad checks and the total value of the residences of Judge Marbley, Axelrod, Sherman, and Nypaver, was $1,139,760.67, which required an increase in the base offense level of 16. Out of an abundance of caution, the district court estimated the value of the intended loss at $970,865.17, thus increasing McBride’s offense level by only 14. The actual loss was limited to $800, which was the sum of the checks McBride wrote to the bankruptcy court to satisfy the $200 filing fee for each of the four involuntary bankruptcy petitions.
*473 Although this Court affirmed McBride’s conviction with regards to Counts 2-6, it reversed his conviction for Count 1, the conviction for presenting a false claim to the government. Furthermore, this Court vacated McBride’s sentence, and remanded his case to the district court for resen-tencing because of the disparity between the intended loss and the actual loss. Based on the sentencing transcript, this Court determined that the district court believed that it could not consider the “economic reality principle,” which allows for downward departures when the amount of an intended loss seriously overstates the severity of the offense. This Court determined that the district court’s belief that the disparity between the actual and intended loss was not grounds for a downward departure was plain error, and remanded to the district court for resen-tencing.
A resentencing hearing was conducted in October, 2004. The Government prepared a sentencing memorandum, to which McBride objected based on
Blakely v. Washington,
II.
McBride argues that in applying the Guidelines, the district court violated his Sixth Amendment rights. He argues that the district court unconstitutionally made factual findings to enhance McBride’s sentence under the Guidelines. McBride objected to his sentence prior to resentencing, based on the Supreme Court’s decision in
Blakely v. Washington,
Although the court did make factual findings of the kind prohibited by
United States v. Booker,
III.
Even though a
Booker
violation is rendered harmless by a district court’s articulation of an identical alternate sentence, this Court must still determine if that alternate sentence is reasonable.
Booker,
*474 McBride argues that his sentence is unreasonable because the district court did not properly consider the sentencing factors articulated in 18 U.S.C. § 3553(a). Section 3553(a) sets forth the factors a judge must consider in sentencing a defendant. McBride argues that the district court’s sentence is unreasonable because the district court considered some of the factors, referred to others, and simply ignored the remaining ones. McBride further argues that his sentence is unreasonable because the district court did not reasonably consider the economic reality principle.
This Court has held that although a sentence should reflect the considerations listed in § 3553(a), “there is no requirement that the district court engage in a ritualistic incantation of the § 3553(a) factors it considers.”
Chandler,
Before turning to the facts of this case, we pause to comment on the state of the law since
Booker.
Achieving agreement between the circuit courts and within each circuit on
post-Booker
issues has, unfortunately, been like trying to herd bullfrogs into a wheelbarrow. The courts have particularly struggled to—and often failed at—properly applying the remedial portion of
Booker
along with the remedy. One murky area is what to do about the pre-
Booker
concept of “departures” under the Guidelines now that the Guidelines are merely advisory. This Circuit is not exempt from causing confusion in this area. One particular source of that confusion is the Court’s recent opinion in
United States v. Puckett,
To start, we address what
Puckett
does and does not stand for. Our reading of
Puckett
is that the district- court denied a motion for a Guidelines departure provided
for
under Chapter 5 of the Sentencing Guidelines. The Court then framed the question as whether we may review “the district court’s decision to
deny
a downward departure” under Chapter 5 of the Guidelines.
Id.
at 344. Reciting our
pre-Booker
holdings, specifically
United States v. Stewart,
In Pwkett, after concluding that it did not have the authority to review the district court’s decision not to depart downward, the Court affirmed the defendant’s *475 sentence. This was apparently because, in the panel majority’s opinion, Puckett did not correctly argue for reasonableness review. Instead, the majority found that Puckett “argues for review of denials of downward departures, but he does not advocate the reasonableness review suggested by Booker.” Id. at 345. Instead of arguing for reasonableness review, Puckett argued that we should “apply a clearly erroneous standard to the denial of a downward departure” under Chapter 5K. Id. Based on Stewart, the Court rejected Puckett’s argument. The dissent, however, would have remanded for resentencing. The point of contention between the majority and dissent over whether resentenc-ing was appropriate in this case was over whether Puckett properly argued for reasonableness review and whether raising the issue in a reply brief was sufficient. 2
The dissent in
Puckett
also noted that— absent the dispute over whether the issue was properly raised—nothing “preclude^] reasonableness review of aspects of the sentencing determination other than whether a departure is permitted (and to the extent to which a departure is permitted) under the provisions of USSG Chapter 5.”
Id.
at 346 (Rogers, J., dissenting) (citing
United States v. Justin Jones,
In light of the changing landscape of our review and approach
post-Booker, Puckett
in reality precludes our review of only a small portion of the overall sentencing determination. Before
Booker,
we reviewed the district court’s sentence to determine whether it properly calculated and applied the Guidelines. Now when a district court imposes and we review a sentence for reasonableness, the focal point is on 18 U.S.C. § 3553(a).
3
In section 3553(a), there are numerous factors for a court to consider, and under
Booker’s
remedial holding, the Sentencing Guideline range is one of those factors. That is, while the Guidelines remain important, they are now just one of the numerous factors that a district court must consider when sentencing a defendant.
See e.g.,
*476
United States v. Webb,
Once the appropriate advisory Guideline range is calculated, the district court throws this ingredient into the section 3553(a) mix. Considering, as Booker requires, all of the relevant section 3553(a) factors, including the Guideline range, the district court then imposes a sentence. This sentence we may—and Booker requires us to—review for reasonableness. See Webb, 403 F.3d at 383-85 (discussing reasonableness review). This is so, even if the district court rejects a defendant’s claim for a lesser sentence in light of the section 3553(a) factors. 4
This is a major change in the law due to the now-advisory Guidelines. Under the mandatory Guideline system, a defendant’s only hope of a lesser sentence was a Guideline-based downward departure.
Stewart
precluded us from reviewing a denial of the downward departure and thereby strictly circumscribed our review of certain sentencing determinations. Now, because the Guidelines are no longer mandatory and the district court need only consider them along with its analysis of the section 3553(a) factors, the decision to deny a Guidelines-based downward departure is a smaller factor in the sentencing calculus. Furthermore, many of the very factors that used to be grounds for a departure under the Guidelines are now considered by the district court—with greater latitude—under section 3553(a).
See e.g., Mickelson,
Thus, Puckett simply precludes our review of that narrow determination of a denial of a Chapter 5 Guideline departure within the context of the Guideline calculation. 5 It does not prevent our review of a defendant’s claim that his sentence is excessive based on the district court’s unrea *477 sonable analysis of the section 8553(a) factors in their totality.
We further recognize that there is not complete agreement among the courts over whether Guideline-based “departures” truly even exist at this point. The Seventh Circuit has expressly stated that “framing of the issue as one about ‘departures’ has been rendered obsolete ... It is now clear that after
Booker
what is at stake is the reasonableness of the sentence, not the correctness of the ‘departures’ as measured against
pre-Booker
decisions that cabined the discretion of sentencing courts to depart from guidelines that were then mandatory.”
United States v. Johnson,
Puckett stands for the proposition that we cannot review a district court’s decision to deny a Chapter 5 Guideline departure in calculating the Guideline sentence. We must review, however, for reasonableness, the district court’s consideration of the Guideline sentence in the context of the other section 3553(a) factors. To interpret Puckett more broadly—that is, to preclude our review of a district court’s decision not to sentence below the applicable Guideline range—would run completely contrary to Booker’s mandate and is unreconcilable with reasonableness review and this Circuit’s post-Booker case law. Therefore, we interpret Puckett to comply with the Supreme Court’s mandate.
IV.
We now review McBride’s sentence for reasonableness consistent with Webb. This includes review of the district court’s decision not to impose a lower sentence based on the economic reality principle pursuant to its consideration of factors under section 3553(a). Upon resentencing, the district court properly considered the economic reality principle as a basis for downward departure. That court, however, declined to revise its original sentence, because it found that a downward departure would understate McBride’s criminal history, and because McBride had recently made clear to the district court that he intends to “disrupt the proper functioning of the government by whatever means he may employ.” The court concluded that these considerations, “both of which would support upward departures as noted by the Probation Officer, outweigh the need to downward depart.”
Here, the district court specifically set forth its treatment of substantially all the factors set forth in section 3553(a) in sentencing McBride. The district court discussed the nature and circumstances of the offense, and McBride’s history and characteristics. See § 3353(a)(1). In announcing the alternative sentence, the district court discussed the sentence as a means to reflect the seriousness of the offense, to pro *478 mote respect for the law, and to provide just punishment for the offense. See § 3553(a)(2)(A). The court noted that the sentence would be an adequate deterrent to those who may seek to mimic McBride’s conduct in the future. See § 3553(a)(2)(B). The court discussed the likelihood that McBride would commit future crimes, See § 3553(a)(2)(C), and acknowledged and rejected other forms of sentencing that were available. See § 3553(a)(3). Finally, the court considered a lesser sentence based on the economic reality principle.
This Court generally remands to the district court when the lower court fails to mention section 3553(a) or provide sufficient information with regard to the sentence to permit a reasonableness review.
Webb,
Notes
. Instead, Puckett addresses our review of the Guidelines calculation, which under Booker, and as discussed infra, is both advisory and merely one factor to be considered in the context of section 3553(a).
. The dissent wrote: "Generally, review of an issue mentioned for the first time in a reply brief is precluded. In light of the intervening change in law, requesting reasonableness review in the reply brief should be sufficient, where, in this case, the original briefs were filed before the Supreme Court decided
Booker." Puckett,
. While the district court need not explicitly reference each of the section 3553(a) factors, there must still be sufficient evidence in the record to affirmatively demonstrate the court's consideration of them.
United States v. Webb,
. This review did not occur in
Puckett,
of course, because the majority determinated that the issue was not properly raised.
Puckett,
. It is perhaps helpful to think of Chapter 5 departures, which Puckett addresses, as Guideline departures. In turn, sentences lower than the Guidelines recommendation based on section 3553(a) factors, can be thought of as Non-Guideline departures, which are fully reviewable by us for reasonableness.