Lead Opinion
CLAY, J., delivered the opinion of the court, in which MOORE, J., joined. GRIFFIN, J. (pp. 566-571), delivered a separate dissenting opinion.
OPINION
Defendant, Timothy Undrae Johnson, appeals to this Court his sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Defendant claims that the sentence imposed by the district court was not “reasonable” in light of United States v. Booker,
For the reasons set forth in this opinion, we VACATE Defendant’s sentence and REMAND this ease to the district court for resentencing.
I.
Defendant, Timothy Undrae Johnson, was involved in an altercation with another individual in a Jackson, Tennessеe bowling alley. Defendant allegedly threatened to shoot that individual, and revealed a small handgun that he was carrying in his pocket. Police were called to the scene, and a subsequent pat-down by the responding officer uncovered a loaded Bryco Arms .25 caliber handgun hidden on Defendant’s person. Defendant was arrested and taken into custody.
An investigation by the United States Probation Department (“Probation Department”) revealed that Defendant was on probation at the time that he committed the offense in this case, having been previously convicted on February 9, 2004, of felony aggravated assault in the Circuit Court of Crockett Cоunty, Tennessee. Defendant had served thirty days jail time on that conviction, which was to be followed by three years probation with the Tennessee Department of Corrections. As a result of the arrest at the bowling alley, Defendant was taken back into the custody of the Crockett County authorities. A state court hearing was held on July 8, 2005, and an order was issued by the Circuit Court of Crockett County, Tennessee, revoking Defendant’s probation, and ordering that Defendant be remanded back into the custody of the Tennessee Department of Corrections to serve out the remainder of his sentence.
A presentence investigation report (“PSR”) was prepаred by the Probation Department prior to Defendant’s sentenc
Defendant then claimed before the district court that it was his understanding from his state court hearing that the state court judge did not intend that he [Defendant] should serve the balance of his time, but rather that the state court judge intended that Defendant be given 221 days credit on his sentence, and that the remainder of his sentence be suspended.
The district court refused, stating that as a policy matter, the federal courts should not put off sentencing until after the state courts resolve their sentencing issues because to do so would open the door for every federal defendant to say, “[w]ait a minute, that state conviction’s not right. I need to go get it fixed before you sentence me.” (J.A. at 39) The district court went on to remark that it was going to proceed with sentencing since “these guidelines are advisory only now, I’m not going to be bound by these criminal history point determinations nearly as severely as I was previously.” (J.A. at 40) The district court denied Defendant’s request for additional time, and accepted the probation officer’s amended calculations. The district court then proceeded to sentence Defendant, stating the following:
Mr. Johnson, I’m not required to use these guidelines as the exact sentence, but I’m supposed to consider these guidelines. In my judgment, these guidelines do reflect an appropriate range of sentences. There’s an overlap between the one that was previously calculated, 27 to 33 months, and the new one, 30 to 37 months; so I’m going to— Since you were at the top of the criminal history scored under thе previous calculations and you’re at the middle of the criminal history score under the current calculations, I’m going to overlap those and give you a sentence that would be appropriate under either range. It seems to me, Mr. Johnson, that a sentence of 30 months in the Bureau of Prisons is an appropriate sentence, so I’m going to commit you to the custody*563 of the Bureau of Prisons for a term of 30 months.
(J.A. at 41) At counsel’s request, the district court also agreed to recommend a long-term drug treatment program for Defendant.
II.
We review the district court’s sentence and exercise of discretion (if any) for “reasonableness.” United States v. Jones,
We hold here that the district court’s sentence is not procedurally reasonable under Booker. “Section 3553(a) instructs district courts to impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in that section.” United States v. Foreman,
We find persuasive Defendant’s argument that the district court failed to consider the other § 3553 factors, and sentenced him solely on the basis of the Guidelines. Despite the fact that the district court expressly acknowledged that the Guidelines are now advisory, and that the Guidelines are only one factor that should be considered, the district court failed to state on the record that it was considering any of the other § 3553 factors. In fact, the district court provides no indication at all of why it felt that Defendant’s sentence was approрriate, other than to state that it was appropriate under the Guidelines. While it is true that the district court is not required to explicitly go through each sentencing factor, the district court is required to provide this Court with some evidence on the record that the § 3553(a) factors were considered. See Webb,
III.
Rather than remand this case to the district court for resentencing, the dissent would disregard the Booker violation as harmless error
As a threshold matter, the government entirely fails to cite relevant case law and makes no attempt to apply the facts of this case to support its claims of harmless error. The government’s lack of developed argumentation yields two legally fatal consequences. First, in relying on such a perfunctory discussion of harmless error, the government has effectively waived the argument on appeal. Moore v. LaFayette Life Ins. Co.,
To establish harmless error such that this Court lets stand a defendant’s sentence in spite of errors at trial or sentencing below, the government must “prove that none of the defendant’s substantial rights [has] been affected by the error.” United States v. Oliver,
“[T]his Court does not reach the conclusion that the defendant’s substantial rights have not been affected until it can discern that the district court properly considered the § 3553 factors.” United States v. Caswell,
The dissent relies on Caswell to describe the “proper approach to applying harmless — and plain-error review to reasonableness challenges.” Applying the Caswell approach, it is clear that this Court cannot excuse the district court’s error in Defendant’s ease as harmless. Caswell dirеcts this Court to “analyze advisory Guideline sentences for reasonableness ... to determine whether error was committed.” Caswell,
In this case, the district court plainly “fail[ed] to consider the [§ 3553(a) ] sentencing factors” — explicitly or otherwise. See id. As the dissent correctly points out, Defendant’s counsel did not separately present evidence pertinent to the factors set forth in § 3553(a). However, the PSR does contain evidence relevant to these § 3553(a) factors. (J.A. at 41 (Defendant expressing remorse and acknowledging he “messed up”), J.A. at 48-49 (expressions of regret, cooperation with the investigation, and no identifiable victims), J.A. at 52 (detailing difficulties of Defendant’s childhood), J.A. at 53 (indicating substance abuse problems)) Moreover, Defendant’s memorandum in aid of sentencing requests that the “court ... consider any fact which will allow the court to fashion a reasonable sentence” with respect to those factors. (J.A. at 9) The record in Defendant’s case is notably devoid of any consideration of factors such as Defendant’s personal history, the nature of his offense, or the need for the sentence to deter Defendant or others from future like crimes. Defendant’s sentence is consequently unreasonable and, under Caswell, the district court’s failure tо sufficiently consider those factors cannot be harmless.
Finally, the dissent relies upon United States v. Harden, No. 05-4079,
IV.
For the reasons set forth above, we VACATE Defendant’s sentence and REMAND this case back to the district court for resentencing consistent with this opinion.
Notes
. Defendant's confusion is difficult to understand given the explicit language of the revocation order.
IT IS THEREFORE ORDERED by the Court that the Defendant's sentence to Corrections Management Corporation be revoked and that he will be given 221 days community corrections credit and 0 days jail credit on this sentence. IT IS FURTHER ORDERED by the Court that the Defendant, TIMOTHY JOHNSON, will be designated tо Tennessee Department of Correction for the remainder of this sentence.
(J.A. at 11)
. Section 3553(a) instructs that in determining what sentence to impose, sentencing courts are to consider: the nature and circumstances of the offense and history of the defendant, along with the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and provide the defendant with needed training and medical care. 18 U.S.C. § 3553(a) (2000).
. The dissent oscillates between applying harmless error and plain error review. In United States v. Bostic,
announce[d] a new procedural rule, requiring district courts, after pronouncing the defendant’s sentence but before adjourning the sentencing hearing, to ask the parties whether they have any objections to the sentence just pronounced that have not previously been raised. If the district court fails to provide the parties with this opportunity, they will not have forfeited their objections and thus will not be required to demonstrate plain error on appeal.
Accordingly, where — as here — the district court fails to afford the parties an opportunity to object, plain error review does not apply.
. As if such unwarranted burden-shifting were not enough, thе dissent mischaracterizes this Circuit’s precedent in United States v. Christopher,
. The dissent characterizеs remand in this case as a “futile exercise of marching up the sentencing hill again, only to hand down the same sentence and march back down.” Far from a futile exercise, this Court must remand for resentencing when the district court makes it only part way up the ‘sentencing hill’ in the first instance and, in doing so, fails to leave a trail. That is to say: we cannot know whether the view from the top of the hill would in some way have altered Defendant’s sentence, and absent some articulation on the record, we cannot review the district court’s sentence for reasonableness as Booker requires this Court to do. See Jackson,
Dissenting Opinion
dissenting.
I respectfully dissent. In this sentencing appeal, defendant Timothy Undrae
The majority concludes correctly that the district court failed to provide the necessary § 3553(a) analysis in its sentencing decision. Title 18 U.S.C. § 3553 requires a district court to consider the nature and circumstances of the offense and the history and characteristics of the defendant. Id. § 3553(a)(1). In United States v. Jackson, 408 F.3d 301, 305 (6th Cir.2005), we explained that district courts in a post-Booker era should explain the basis for their sentencing determinations. Although, undoubtedly, the review of specific § 3553(a) factors facilitates appellate review, “this court has never required ‘the ritual incantation’ of the factors to affirm a sentence.” United States v. Williams,
The problem in this case is that the district court did not explicitly address the § 3553(a) factors, choosing instead to rely solely on the Guidelines for support when noting that “a sentence of 30 months in the Bureau of Prisons is an appropriate sentence.”
(a) Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.
(b) Plain Error. A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.
Fed.R.Crim.P. 52; see also United States v. Wilson,
[W]e [do not] believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts tо apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the “plain-error” test. It is also because, in cases not involving a Sixth Amendment violation,, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.
United States v. Booker,
We have heeded the Supreme Court’s instruction in Booker and have continued to perform Rule 52 review to sentencing appeals. In our initial sentencing challenges following Booker, we applied harmless-error and plain-error review to sentences imposed upon the erroneous belief
that the Guidelines are mandatory rather than advisory. We concluded that a defendant’s substantial rights аre not prejudiced where a district court issues an alternative sentence, identical to one based solely on the presumption that the Guidelines are mandatory. See, e.g., United States v. Christopher,
We have continued to apply Rule 52 review where the district court has correctly treated the Guidelines as advisory. In United States v. Caswell, we explained the proper approach to applying harmless — and plain-error review to reasonableness challenges:
When the Guidelines are treated as advisory, there is no presumption of plain error or affect on the substantial rights of the parties. Thus, we analyze advisory Guideline sentences for reasonableness ... to determine whether еrror was committed. It is only after this analysis that we can determine whether any error was plain or whether it affected the substantial rights of the parties.
In particular, we have performed Rule 52 review where — as here — the district court inadequately explains the basis of its sentencing determination. See United States v. Harden, No. 05-4079,
The import from these cases is clear: before this court may vacate a sentence for being proeedurally unreasonable and remand for resentencing, we must consider whether the defendant’s substantial rights have been affected by the district court’s error.
The sentencing transcript reflects the same problem. Defense counsel chose to focus almost exclusively on a perceived problem with the criminal history category assigned to Johnson, and at no point did she direct the district court’s attention to a particular aspect of Johnson’s subjective situation meriting the court’s consideration and corresponding attention for sentencing purposes. Indeed, other than remind the court of defense counsel’s request that Johnson receive substance abuse treatment, counsel declined even to renew arguments regarding the facility where Johnson would serve his sentence.
On appeal, Johnson has failed to show what, if anything, the district court should have done at sentencing and, more importantly, what it would have to do at a resentencing. Faced with similar circumstances, we have declined to remand for resentencing. See United States v. Christopher,
Johnson’s thirty-month sentence is within the Guidelines and, therefore, is afforded a rebuttable presumption of reasonableness. United States v. Williams,
Under these circumstances, as appellate judges, we should decline to engage the trial court in the futile exercise of marching up the sentencing hill again, only to hand down the same sentence and march back down. United States v. Tucker,
For these reasons, I respectfully dissent. I would affirm.
. Although the government does not expressly use the words “harmless error,” it makes a harmless error argument throughout its appellate brief. For example, in its final paragraph of argument on pp 9-10, the government asserts:
The defendant makes no argument that the sentence was unreasonable, but rather only that the method followed by the district court in arriving at that sentence, somehow did not entail “reasonableness.” The defendant has failed to establish either a factual or a legal basis which would constitute error by the district court in this sentencing; therefore, this issue is without merit.
. By noting that Johnson was a Zone D offender, the court — arguably—recognized tacitly that prison was the only "sentence available” to Johnson pursuant to 18 U.S.C. § 3553(a)(3).
. The majority argues that my reliance on Harden is misplaced because the Harden court assumed that the defendant’s substantial rights were prejudiced by the district court’s error. Harden,
. Compare Fed.R.Crim.P. 52(a) ("Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”), with Fed.R.Crim.P. 52(b) ("A plain error that affects substantial rights may be cоnsidered even though it was not brought to the court's attention.”). Under either approach, although the burdens of persuasion differ, the defendant's substantial rights must nevertheless be affected in order for resentencing to be proper. See United States v. Olano,
. None of these concerns suggest that Johnson would receive a shorter sentence on remand. At the sentencing hearing, Johnson's counsel argued that the appropriate sentence range, based on Johnson's criminal history and as computed by the Guidelines, was twenty-seven to thirty-three months; the government argued that the appropriate range was thirty to thirty-seven months. The district court imposed a sentence of thirty months, which it deemed appropriate, in part, because it was permitted under either calculation. On appeal, Johnson does not challenge the district court's conclusion that the appropriate range was thirty to thirty-seven months. Johnson, therefore, received the shortest possible sentence within the Guidelines range.
Nor would Johnson’s need to receive long-term substance abuse treatment affect the length of Johnson's sentence on remand. At the hearing, the district court recommended that Johnson enter a long-term drug treatment program — provided that Johnson qualified for the program — and ordered Johnson to participate in a drug and alcohol treatment program upon Johnson’s release from prison. Johnson, therefore, received the medical care that he requested, and this factor would not result in a shorter sentence for Johnson on remand. See 18 U.S.C. § 3553(a)(2)(D) (directing courts to consider at sentencing, inter alia, the need to "provide the defendant with needed ... medical care”).
Finally, Johnson’s concern about the location where Johnson would serve his sentence was not renewed at the sentencing hearing, nor does it correlate to a § 3553(a) factor that the district court would consider on remand in determining the length of an appropriate sentence.