United States v. Langford

long is reliable. Id. later took bath and washed his trial the result of which Fahy’s girlfriend underwear. convince us that he was testified Fahy has failed to her, trial, Fahy that he to deny this confessed himself of a fair and we deprived killing testified he confessed to the claim. speaking when with his mother. The ver- All Errors not, therefore, F. Cumulative dict was unreliable. Effect of argues that the cu Fahy also V. Conclusion trial mulative effect of all of the errors at stated, him to relief. Individual errors entitle For the reasons we will vacate petitioner that do not entitle a to relief judgment of the District Court entered combined, cumulatively 26, 2003, if may August do so when on to the extent that the them under prejudice resulting from writ on the granted Mills issue. The his trial mined the fundamental fairness of matter will be remanded to the District remand, right and denied him his constitutional Court. On the District Court Horn, process. Albrecht v. apply Teague conjunction due should with (3d Cir.2006). “Cumulative errors deny Beard and relief on the Mills claim. they if had a substantial are not harmless The District should consider wheth- injurious influence in effect or deter trial appellate er counsel were ineffec- verdict, jury’s which means mining object failing litigate tive for to and is not entitled to petitioner that a habeas Mills violation. The Court should consid- issues, relief based on cumulative errors unless he remaining sentencing-phase er the ” (cit prejudice.’ can establish ‘actual Id. initially which it denied as moot. The Abrahamson, ing phase Brecht v. U.S. guilt Court’s determination 123 L.Ed.2d 353 S.Ct. issues do not warrant habeas relief will be (1993)). affirmed. already concluded that the ad-

We error, Fahy’s

mission of confession was not

and that at least two out of the four chal-

lenged prosecutorial proper remarks were However,

comment. even if we were to all of prosecutor’s allegedly

combine

improper with the admission of remarks confession, Fahy’s detailed there is still America UNITED STATES of Fahy’s guilt in the weighty evidence of testimony record. The of the Common- LANGFORD, Appellant. Shawn wealth’s witnesses established that Nicky person who killed Caserta entered No. 06-2774. a.m., the house between 7:15 when the Appeals, United States Court left, child’s mother and 7:30 a.m. when the Third Circuit. supposed child was to meet a schoolmate. locked, unlikely The door was so it was Argued Nov. anyone

victim would have let the house 22, 2008. Filed: Feb. Fahy she did not know. had told a whom pick a.m. that he would coworker 6:45 minutes, up

him five but then arrived Fahy looking pale.

over an hour later THE

OPINION OF COURT RENDELL, Judge. Circuit Langford appeals the sentence Shawn pled guilty after he to bank rob 2113(a), § in bery violation of 18 U.S.C. robbery in armed bank violation of 18 2113(d), carrying § and and brand ishing during a firearm a crime of violence 924(c)(1)(A)(ii). in violation of 18 U.S.C. im Langford was sentenced to 46 months’ Two, to prisonment for Counts One and be concurrently, mandatory and a served imprisonment term of 84 months’ for Three, consecutively, Count be served imprisonment. for a total of 130 months’ Langford argues that the District Court calculated his criminal improperly consequently score and chose an erroneous range as the first Sentencing Guidelines in step sentencing process, and that he should therefore be resentenced. The that the error is harm government urges applicable less because the the correct range overlaps with application of the harmless error stan is an setting dard to a sentence in this fact impression issue of first our Court. We join who appeals will our sister courts that the have decided this issue and hold accordingly error is not harmless. We will Langford’s vacate sentence and remand resentencing. the District AND I. FACTS PROCEDURAL HISTORY Kimberly Pietropaolo, [Argued], Renee Langford March and his On Brunson, R. of Federal Public De- Office Collier, criminal, uncle, a career Charles fender, PA, for Pittsburgh, Appellant. and Bank in Scott robbed the Iron Glass ¶ Pennsylvania. 5-6. Township, PSR Eberhardt, Hay- R. Robert L. Rebecca Langford rеmained pistol, Armed with a wood, Attor- [Argued], Office of the U.S. lobby vaulted the teller while Collier PA, Appellee. ney, Pittsburgh, counter, robbery, emp- announced the and RENDELL, drawers. money from the teller Before: WEIS and tied ¶ fled, NYGAARD, captured were Judges. PSR 7. Both men Circuit chase, robbery charge, adjudicated and confessed he was delin- police following robbery. to the quent bank on October 2003 and committed ¶ youth development to a center. 32. PSR robbery indicted for bank Langford was 28, 2003, adjudi- On October he was also 2113(a), in violation of 18 U.S.C. armed delinquent attempt cated as to criminal robbery bank violation of 18 U.S.C. (auto theft), possession of instruments of 2113(d), carrying brandishing crime, arrest, mischief, resisting during firearm a crime of violence viola disorderly conduct. The court discon- 924(c)(1)(A)(ii). tion of 18 U.S.C. He and, adjudication tinued that third accord- pled guilty charges to the on December PSR, ing to the ordered the defendant to App. 85. ¶ provide sample. a DNA PSR 33. This Langford eighteen years was old at the (the adjudication adjudi- third “auto theft robbery time of the bank and this was his cation”) appeal. is at issue on App. Langford first adult offense. 34. does, however, robbery history adjudica- Because the 2005 bank occurred hаve a of juvenile. years Langford’s tions a In the less than two after as Presentence re- (“PSR”), Investigation Report proba- juvenile youth lease from commitment to center, tion officer concluded that development consideration of probation officer Langford’s prior adjudications three of of an history added additional criminal two juvenile delinquency resulted in five crimi- points, establishing history a criminal cate- ¶ history nal points. gory of IV. PSR 33. adjudications

The two not at issue on At sentencing, Langford’s counsel ar- appeal were as follows: gued appropriate history that the criminal 2001, fourteen, age Langford

1. In III, IV, category was rather than because adjudicated delinquent was for criminal adjudication the last did not result in a conspiracy, possession, possession and, accordingly, point no should with intent to deliver crack cocaine and App. have been added. 116. The Court Community ordered committed to a In- disagreed history and calculated a criminal (and Supervision Program tensive sub- which, category of IV when combined with sequently a detention center for violat- 19, a total offense level of resulted in a ing program). the terms оf his PSR Sentencing of ¶ 31, App. 126. months’ incarceration for Counts One and sixteen, 2. age adju- he was Two. App. Langford 123. was sentenced delinquent dicated robbery, for Two, to 46 months for Counts One and conspiracy, fleeing police. PSR concurrently. Three, be served For Count ¶ 32. carrying brandishing during firearm violence, Langford subject a crime of was charges While the were pending for his mandatory to a minimum offense, term of 84 second Langford was released imprisonment months’ to be served consec- monitoring. with electronic home He utively robbery to the charges. bank appear arraignment failed to and a sentence, therefore, Langford’s total September warrant was issued. On imprisonment. Langford 130 months’ apprehended by police he was ¶ attempted appeal he to steal a does not his sentence for vehicle. PSR 33. Count Three, day, petition That same but rather contends that the for his second Dis- adjudication juvenile was filed in trict Court miscalculated Sentencing charging Two, previous the defendant with the for Counts One and ¶ robbery charge. resulting longer PSR As to the thus in a overall sentence. imprisonment exceeding of adult sentences timely appealed. We Langford month, or year 1291 one and one resulted in under 28 U.S.C. jurisdiction 3742(a). imposition juvenile an adult or sen- See United and 18 U.S.C. (3d or from confinement on that release Lloyd, 469 F.3d Cir.2006). years five of the defen- District Court’s sentence within review the We of the instant of- Sentencing Guidelines dant’s commencement interpretation added). Because (emphasis 416 fense.” Id. Pojilenko, de novo. United States Cir.2005). juvenile adjudica- categories the other F.3d are

tions that are to be counted not rele- here, OF LANGFORD’S imposition II. CALCULATION vant “the adult or juvenile prerequisite CRIMINAL HISTORY sentence” is a to us- adjudication in ing Langford’s CATEGORY auto theft history calculation of his criminal argues that the District Langford score. a criminal should not have the discon- juvenile adjudication key question is whether for his point adjudica- Langford’s tinuance of auto theft auto theft because result attempted a “sentence” under the delinquency tion constitutes in a “discontinuance” ed opera- a Guidelines. We must review the He maintains that discontinu petition. Pennsylvania juvenile system the mean tions of the ance is not a “sentence” within 4A1.2(a). whether a “discontinuance” § Because no to determine ing of U.S.S.G. prior definition of a “sen- adjudication the falls within the imposed, “sentence” was counted, § forth in 4A1.2. See have been and the tence” set U.S.S.G. should not III, McKoy, v. history category was proper criminal (3d Cir.2006) (noting that while we Sentencing Guide 238-40 Accordingly, not IV. federal, state, to 46 use rather than law defini- should have been 37 terminology, proceed- tions and the state months. statutory scheme is relevant ing and 4A1.2(a)(1) a prior § defines U.S.S.G. adjudication ac- determining whether the “any previously im sentence as by tually resulted a sentence as defined posed upon adjudication guilt, whether commentary); and its accord Guideline trial, by guilty plea, plea or of nolo conten (8th Morgan, U.S. v. dere, part conduct not of the instant for Cir.2004). sure, government offense.” To be as the Pennsylvania, juvenile delinquency a juvenile adjudications are not ex In argues, find be- adjudication requires a court to the calculation of a defen empted from a child com- yond a reasonable doubt that history score. United dant’s (3d if Bucaro, constitute crimes mitted acts that would v. States Cir.1990). by an See Pa.C.S.A. juvenile adjudications, committed adult. Not all 6341(b). § court then or- however, Typically, the points, result in criminal with the aid disposition. Completed а “[attempting to count ev ders largely because study and inves- a social adjudication comprehensive would have the ery juvenile ‍​​​‌‌‌​​‌‌‌​‌​‌​‌‌‌​‌‌​​‌‌‌​​‌‌​​​‌​‌​​‌‌​​‌​‌​‌‍disposition may operate as tigation, due a creating large disparities for potential an adult sentence. equivalent functional availability of records.” to the differential However, § the court 4A1.2, Therefore, “[i]f id. § cmt. n. 7. for See U.S.S.G. in need of treat- that the child is not prior age eighteen, finds offenses committed ment, or rehabilitation shall supervision limit criminal comments the Guidelines discharge proceeding in dismiss the to “those that resulted history points any is, essence, or other child from detention restric- the Guidelines as this tion ordered.” See id. 4A1.2(f) theretofore juvenile § diversion. See U.S.S.G. 6341(b). Here, juvenile § adju- (noting that diversionary disposition “[a] Langford delinquent dicated in connection resulting finding from a or admission of ” attempted with the auto theft offense. guilt, plea or a of nolo contendere from a Thereafter, however, it ordered juvenile court is not considered a sentence petition be discontinued. 4A1.1(c)); under Langford’s sentencing, In the PSR Cir.2006). McKoy, 452 F.3d probation one criminal officer added government refers us to no аuthori history point adjudication this reli ty from which we can find that a discontin 4A1.2(a)(3), ance on which pro U.S.S.G. juvenile uance court constitutes a vides that conviction for which the “[a] Instead, sentence. it cites numerous eases imposition or execution of sentence was where courts reached the unremarkable totally suspended stayed or shall be count 4A1.1(c).” conclusion that suspended probation or prior ed as a sentence under Langford objected ground on the ary no sentence constitutes a sentence under actually sentence had imposed. been 4A1.2(a). See, U.S.S.G. e.g., United response, probation officer admitted Holland, (8th 195 F.3d 415 Cir. States adjudication that the had resulted 1999) (examining a suspended sentence im sentence,” “imposition of no yet reached posed by juvenile court); United States v. improbable conclusion that it could be (5th Holland, Cir.1994) (same). 26 F.3d 26 counted a prior sentence because “[t]he Lastly, government urges us to as- sentence, imposition of no as occurred juvenile sume the court discontinued here, is akin a ‘suspended’ to sentence.” Langford’s attempted adjudica- auto theft appeal, govеrn PSR 2d Addendum. On the analogy ment asks us to use this only to find tion Langford already because had the discontinuance awas sentence.1 juvenile been committed to a institution on separate offense, a so that “there was sim- juvenile If in fact the court had imposed ply no juvenile reason for the court to probation sentence, suspended or a our impose a review such juvenile again would end here. The once a few court, however, impose did not a sentence Appellee’s weeks later.” Br. at 17. We suspend operation; then its it discon- government’s decline the invitation to en- tinued the action. Refusing impose to a conjecture. in gage if Even we were able sentence is not the same as suspending a to juvenile motives, ascertain the court’s sentence. Dictionary Black’s Law irrelevant; they are the essential fact here (6th ed.1992) (defining suspended a sen- is that the court discontinued the petition tence as “[a] conviction of a crime followed impose not did a sentence. given formally, a sentence that is light In foregoing, we hold that served”). actually not Even if we under- juvenile the discontinuance of adjudica- the juvenile stood the court to have continued tion here is a pur- not sentence for disposition hearings the the under Pa.C.S. 6341(e) (which 4A1.2(a) not), poses we do of U.S.S.G. we would not and should count a continuance as a “sentence” under not have in been used the calculation of the argument, government 4A1.2(f) 1. At changed oral the adjudication guilt and that the of argued only juve- tactics somewhat and a was akin ato concurrent sentence. Neither nile diversion is not a sentence under of these contentions merit. often a range will be the calculated Guidelines history under criminal defendant’s reasonable- necessary precondition of our Guidelines.2 a court be- review. Where district ness juvenile of a the discontinuance Since it will be an erroneous gins with a sen- be considered adjudication cannot it to determine that fulfilled difficult for us purpose of U.S.S.G. duty its to consider Guidelines Langford’s 4A1.2(a), point a to adding ultimate sentence. through reason to the adju- basis this history on the of criminal in these considerations We will discuss turn, error, error. This dication turn. the overall calculation of affected it from category moving — A. calculate Guidelines Duty to subsequent III to IV—and catеgory each individual case range in changing Guidelines calculation— 37 to 46 months a from rendering the adviso In of 46 to Two to a range One and Counts made clear that ry, months. to “consid sentencing required are crafting a sentence. er” the Guidelines IN- THE EFFECT OF AN III. Booker, 543 U.S. GUIDELINES CORRECT 245-46, 160 L.Ed.2d CALCULATION (2005). provided dis Court thereafter Our three-step process to trict courts with adviso- are now Although the Guidelines with the Su comply follow order great court has discre- ry and sentence, ruling Booker: preme Court’s the substance tion over applicable calculation of the the correct (1) must continue calculate Courts important remains an precise- defendant’s Guidelines all, as requirement. First procedural Booker. they would have before ly as Booker, re- before (2) so, formally rule they must doing range in to calculate quired parties and state of both on motions case, is the focus and that calculation each they granting are whether on record Second, a dis- parties’ arguments. departure af- and how that departure a the required to consider trict court is calculation, take and fects the Guidelines 3553(a)(4), § pursuant to range, pre-Booker our Circuit’s into account starting point a range as and use have law, continues to adviso- case which 3553(a) analysis. § entirety of the the ry force. 3553(a) § on its consideration Based (3) their they are to exercise factors, Finally, reasons must state the the Court considering the relevant by a discretion explain whether for its 3553(a) setting in the sentence § factors appropriate is within-Guidelines whether it regardless of case, they impose process a which particular un- from the sentence calculated varies a correct Guidelines require will generally correctly der the Guidelines. finally, Third calculation. observes, cited rightly the cases Langford argues As government for the first also

2. The support for juvenile government provide court’s or- no appeal by that the time on 17, prior discontinu- we Appellee’s that was to the Br. at proposition, der issued this requiring Langford petition, to reject ance of We none. independently found sample, was sufficient to provide a DNA argument. this Appellee’s at 18. Br. to a sentence. amount 212 Gunter, 237,

United States v. 462 F.3d 247 the Guidelines specifically by listed (3d Cir.2006) marks, brackets, (quotation in Court Gall as a “signifi omitted); and citations see United also cant prоcedural error.” Id. at 597. A 622, Wing, States v. Hawk calculation, therefore, correct crucial (8th Cir.2006) (stating that should the sentencing process and result. ranges just they calculate Guidelines as An erroneous calculation of the Guide- Booker); would have before lines will frustrate the sentencing court’s (2d Cir.2005) Crosby, 397 F.3d ability give meaningful consideration to (“The applicable is nor- “the kinds of sentence and the sentencing mally to be determined in the same man- ... applicable established for Booker/Fanfan.”). ner as before When a category of by offense committed ap- sentencing court applica- miscalculates the plicable category of defendant as set forth ble discharge fails to its duties ” in guidelines .... required by 18 step under one of Gunter. weAs made 3553(a)(4). The Supreme Court Jackson, clear United States v. “because recently noted that judge “[a] district must play integral Guidelines still role include the Guidelines array sentencing, require we factors warranting consideration.” entirety of the Guidelines calculation be — States, Kimbrough v. United U.S. (3d correctly.” done 838 n. 4 -, 558, 564, 169 L.Ed.2d 481 Cir.2006) (citations omitted). (2007) added). (emphasis As we have ob- “[bjecause served, B. The “starting point” a district the Guidelines reflect 3553(a) court’s collected wisdom of various institu- tions, they deserve careful consideration in The correct Guidelines calculation is not each case. they Because have been pro- merely one of steps, three but rather con Congress’s direction, duced at they cannot stitutes the “natural starting point” from ignored.” be Goff, which the sentencing court exercises its (3d Cir.2007); F.3d accord United discretion under Gunter' s Lalonde, n.& 5 step. third United States v. Cooper, 437 (6th Cir.2007) Gall, (noting that after Cir.2006). F.3d theAs Su court of appeals “cannot find that a sen- preme recently confirmed Gall v. tencing properly court has considered the States, United “a district court should be if it factors miscalculated the gin all proceedings correctly advisory Guidelines range”). calculating applicable As matter of administration and to se proper Guidelines benchmarks —of- cure nationwide consistency, level, the Guide fense criminal history, enhance- lines starting ments, should be the point and the and ultimate necessary —are — -, initial benchmark.” U.S. 128 prerequisites a analysis to court’s under 586, 596, (2007). 3553(a)(4) § S.Ct. 169 L.Ed.2d 445 general and, specifi- more 3553(a)(6) The Court further observed that cally, § “[t]he (concerning dispаrity 3553(a) § fact explicitly defendants) that sen 3553(a)(5) directs between § and tencing courts to consider the (having Guidelines to with the Sentencing do Commis- supports premise the that district courts sion commentary). example, For where a begin must their with the Guide court miscalculates a defendant’s criminal lines and remain cognizant of history, them attempts its to disparity avoid be- throughout the sentencing process.” 3553(a)(6) Id. pursuant § tween defendants to at n. 6. correctly 597 The failure to apply will be misguided ineluctably as it will

213 a within-Guidelines sen- imposition of who have to others the defendant compare injustice upon in a visit an the are tence would offense but the same committed to history category. pursuant Simi- defendant U.S.C. different incorrectly 3553(a), de- upon § it is incumbent sentencing if court the larly, a adjust- so, endangerment below say a reckless to and sentence the judge cides it applies, § 3C1.2 range. Conversely, U.S.S.G. when the under Guidelines ment Sentencing Com- may rely inapplicable satisfy on is low to too the 3553(a), as it evaluates judge comments § mission the district must vary factors. why upward. this is so and explain exercise Moreover, sentencing Cir.2007) court’s (3d a (citing a out- impose to 2466). discretion of its Ritа, Due pro 127 S.Ct. or determine to side the Guidelines requirements. underlie these cess concerns “a within-Guidelines Ausburn, United objec- the necessary’ to serve than ‘greater Cir.2007) (“[D]ue in crimi process 128 S.Ct. sentencing,” Kimbrough, of tives a sentencing requires that defendant nal necessarily when be skewed will of, oppor notice and a reasonable receive range. Without applicable the misperceives (a) on, alleged tunity comment the fac court range, a district knowing the correct (b) sentence, and the predicate tual for his sen- may impose an outside-the-Guidelines may be im which potential punishments explana- adequate providing without sentence.”); States posed at United or, a sentence alternately, may impose tion (2d Cir.2005) (in Fuller, range or one end of the to be at believed cases, post-Booker discussing pre- the actually falls below a court’s fail district noted correct within the 3553(c)(2) a with denies comply ure to “ more right argue ‘the effec defendant Imposing a sentence outside is ‘rea ... ... a sentence tively whether range with correctly calculated Guidelines ’ ”). sonable’ face of the fly would explanation out As preсedent. and our Supreme Court’s calculation Guide- An incorrect C. v. Unit noted Rita Supreme thwart reasonableness range can lines 3553(c) States, a calls for ed review to “state sentencing” time of judge “at the relies on a review Our reasonableness imposition court the reasons its open starting reasoning from district court’s — U.S. -, sentence.” particular correctly calculated Guidelines point of the 2456, 2468, L.Ed.2d 203 Court, factors. Our through the (2007). correct Without appeals, Su- sister our to com- sentencing court will fail range, a a district court’s agree that preme Court holding that Court’s ply with range im- use of the incorrect justify a properly sentencing court must review of ability to conduct pedes our on the record Guide- sentence based ultimate sentence. it. Id. at 2465-68 calculation before sentenc- (reiterating importance emphasized that We to thor- subjecting the sentence ing execute Gunter’s first court’s failure to court’s testing). As we said adversarial reasonableness ough to thwart our step will tend Fisher, Jackson, v. F.3d at 838-39 States 467 United review. See (“[District what must still calculate [i]f, appropriate the calculating after is, sentencing range proper that the the Guidelines Guidelines, judge finds a district stated, otherwise the Guidelines cannot be consid- has where “the sentence fails the properly ered at step.”). Gunter’s third first step analysis of our [because of an For, computation the correct of the Guide- application Guidelines], incorrect we range any departures therefrom need not reach the step, second a determi clarify “serves to the basis for the sen- nation of whether sentence is imposed” and thus facilitates reason- 3553(a).” light reasonable in United ableness review. Floyd, Mashek, (8th 1012, States v. 406 F.3d (3d Cir.2007). 308, 499 F.3d In United Cir.2005); see also United States v. Ali, that, explained we by relying Williams, (11th 456 F.3d Cir. incorrectly on an calculated Guidelines 2006) (only if the Guidelines calculation is improper and ‍​​​‌‌‌​​‌‌‌​‌​‌​‌‌‌​‌‌​​‌‌‌​​‌‌​​​‌​‌​​‌‌​​‌​‌​‌‍an departure determi- correct or the error harmless can the court nation, judge “necessarily go on to consider whether the sentence is meaningfully was unable to consider the reasonable); United States v. Hernandez recommended Guidelines as re- Castillo, (10th 1129-30 Cir. 3553(a)(4).” quired by § 154 2006) (same). (3d Cir.2007). Thus, concluded, we “the importance of a correctly calculated preliminary errors at steps one and two range to our reasonаbleness review is evi- tainted the step three and result- dent in opinions Court’s ing sentence.” Id. (remanding for resen- well. While Gall reinforced a district tencing based on the court’s error at Gun- court’s one). discretionary authority to choose step ter's sentence, the substance of a it also clari- Our sister appeals courts of agree that fied the appeals role of courts of in review- “the guidelines correct range is still the ing procedural and substantive errors in critical starting point imposition for the sentencing. In both Kimbrough, Gall and a sentence” and a prerequisite to reason began by noting that the sen- ableness Crawford, review. 407 F.3d at tencing properly court had calculated and 1178-79; Wing, Hawk 433 F.3d at 631 advisory considered the Guidelines (internal quotation omitted); marks Unit only then turned to the sentencing (8th ed States v. Zeigler, 463 F.3d court’s consideration of the fac- Cir.2006) (Hansen, J., (“Gener concurring) 575; Gall, tors. Kimbrough, 128 S.Ct. ally, if the district court errs in applying Gall, 128 S.Ct. at 598. Accordingly, in step Guidelines at one or fails to con Court instructed us to “ensure that requested sider a departure two, step district court significant pro- committed no we cannot conduct a reasonableness review error, cеdural such as failing to calculate because the district court’s critical starting (or improperly calculating) the point, a correctly advisory determined range, treating the Guidelines as mandato- range, may flawed.”); be Unit ry, Staten, failing (9th ed States consider the fac- Cir.2006) (“If tors, selecting a ... sentence based on clearly ‘there was material error facts, in the Guidelines erroneous failing calculation that or to adequately serves as starting point explain the district chosen sentence-including court’s decision, explanation any we will remand for deviation from the resentencing pursuant range” to 18 considering before 3742(f), without reaching question substantive reasonableness of a sentence. Gall, whether the sentence as a whole is reason 128 S.Ct. at 597. This step, first 3553(a).’”). able in light §of ensuring As the that the sentencing court did not Court of Appeals for Eighth error, Circuit make a procedural increasingly

215 remanding plain under the (vacating Supreme of the Court’s light important it “lack[ed] error standard because will sentence that “a Guidelines decision and firm conviction’ that removal Rita, ‘definite usually be reasonable.” would not be inappropriate grounds 2468. of likely to alter the district court’s view sum, court is “the district while rightfully imposed”); to be the sentence applica reasonable to make its own free Duckro, 438, 466 F.3d 446 3553(a) factors, reject and to tion Cir.2006) (“[w]here (6th court a district consideration) (after advice of the due calculating a mistake in a Guide makes Guidelines,” at 577 Kimbrough, 128 S.Ct. determining of purposes (Scalia, J., duly first concurring), it must 3553(a), under section we are re Thus, correct Guidelines. consider the resentencing remand for ‘unless quired to incorrect calcu court’s district any that error was we are certain such only ability its lation will thwart not harmless-i,e. any error “did not affect such undertake, is to accomplish of the sen the district court’s selection ’ review as well. but our reasonableness (citations omitted). ”) imposed.” As instructed, has ERROR IN THE HARMLESS IV. of the sentence bears the bur proponent SENTENCING CONTEXT “persuading] appeals the court of den of imposed court would have that the district that, given impor suggest We the erroneous the same sentence absent calculation a correct Guidelines tance of States, 503 factor.” Williams v. United that district sentencing process both to the 1112, 193, 203, 117 L.Ed.2d U.S. S.Ct. to our required are to conduct and (1992). harmless, For the error to be review, ability carry out reasonableness not clear that the error did it must be of an erroneous Guidelines the use court’s selection of affect the district reversal under 18 typically require will 203, 112 Id. at S.Ct. imposed. 3742(f). Nonetheless, under cer will remand for Accordingly, we circumstances, tain, miscalculation limited on the resentencing “unless conclude [we] may be harmless. of the Guidelines a whole ... that the error did record as such urges that this is one government the district court’s selection not affect and incorrect time because the correct Id. imposed.” the sentence are not so sure. ranges overlap. here We improper calculation submit We traditional According to our rarely can be the Guidelines standard, a non-constitu harmless error imposed. the sentence shown not to affect highly “it is harmless when tional error case in which error typical In the prejudice” that the error did not probable Sentencing Guidelines has calculating of Virgin Is defendant. harmless, Government the sentence was dic- held been (3d Toto, F.2d Cir. erroneously lands v. calculated by the tated not “ 1976). ‘High probability’ requires Guideline, statutory minimum or a ‘sure conviction maximum cаlculated possess properly or another Frazier, 213 prejudice’ not the defen v. the error did Guideline. United States (7th Cir.2000) Zehrbach, (finding F.3d 417-18 dant.” United (3d Cir.1995) miscalculation (quoting United court’s Jannotti, history catego- 219-20 of the defendant’s v. States to the sentence Cir.1984)); ry was irrelevant accord States United Cir.2006) (1st carried a life offense level Wallace, because his 216

sentence); see also United v. range States Wilk- lines did not affect the sentence (10th en, Cir.2007) F.3d 1160 (holding actually 498 The imposed. overlap may be application the erroneous of an en- helpful, but it is sentencing judge’s hancement did not affect reasoning, alone, the district overlap not the that will imposed court’s selection of the sentence be determinative.3 qualified because defendant aas career In Knight, States v. United we made subject offender and as such was to cate- clear that agree we do not that an overlap gorically prescribed offense ranges between renders an error harm- levels); Long Sol- v. (3d Cir.2001). less. 266 F.3d 203 dier, (8th 1120, Cir.2005) 1121 431 F.3d Knight, erroneously the District Court cal- (“The district court’s belief that erroneous range culated the Guidelines as 151 to 188 depart it could not upward deprive did not impоsed months and a 162-month sentence Long any Soldier of substantial-or even that fell within the correct Guidelines beneficial-right. deprived merely He was range of 140 to 175 months. Id. at 205. opportunity of the upward receive an exacting plain standard, Under the error and, departure perhaps, longer sentence. “application we held that of an incorrect such, ”). any As error is harmless.... In Federal Sentencing range pre- cases, although made, such an error sumptively rights, affects substantial even not impacted could have the ultimate sen- if it results in sentence that is also within tence. Id.; the correct range.” see also United Wood, (3d government 781, States v. 486 F.3d contends 790-91 Cir.2007) sentencing where, (relying error is also on Knight post harmless -Booker here, imposed the sentence and vacating falls into the and remanding); United “overlap” Felton, (3d between the incorrect Guidelines States v. 869 n. 3 range Cir.1995) (“This by used court circuit and others have the correct Although found that the miscalculation of a defen- adopted some courts have an “overlapping dant’s ‘certainly offense level is error that rationale, range” we seriously conclude that such an affeet[s] the dеfendant’s rights, “overlap” does not necessarily ”) (citation render an and so plain amounts to error.’ omitted); error the Guidelines Pollen, harm calculation States v. United alone, overlap, Cir.1992) (“The less. Such an proves too F.2d district little. The record must improper ..., show court’s calculation resulting sentencing judge would imposed in a significantly higher Guideline sentenc- same under a correct ing range, certainly is an error that seri- is, range, that that the sentencing Guide- ously affected [defendant’s substantial Harris, (which United See F.3d any case the appeals court of (8th Cir.2004) that, (concluding correct) based on believed to be and the sentencing, the record from it was clear that imposed court made clear that it would have imposed district court would have regardless the same sentence of the noting harmless); sentence and same had over- error was cf. Dillon, lap overlapping (7th been at the bottom Cir.1990) 1037-38 area, might "there be an (speculating inference that the that because the correct Guide- given court would have [the defendant] a low- overlapped, and that used er sentence if he had received a sentencing judge [smaller] would have a sen- Rivera, adjustment”); United high States tence at the end under the correct (2d Cir.1994) (holding that judge where because of factors the had proper- other overlap considered, there was an in the ly sentence the de- though even the sentence was used). fendant advocated and the used range actually middle error”). that sentence.” Id. at in order to obtain plain amounts to and so rights that, although the court had wherein our 230. We said numerous cases reviewed We impose it a sentence similarly concluded stated that would not appeals courts of sister unclear on the record probation, was of an incorrect Guide- that the selection depart six levels though again that it would not error even plain was lines an even lower sentence at the impose to fall within and happened the actual sentence range. Id. at 230 Id. at 208-10. bottom the correct Guidelines support that “the record for the (stating had been to that some cases Recognizing have possibility Thayer would received that our case law contrary, we decided the but the shorter sentence protects in that it better more sound 2F1.1(b)(4)(B) enhancement is sufficient “im- right to a sentence the defendant’s remand”). require correctly applied law” posed pursuant the Guidelines’ effectuates and “better Moreover, starting point when the sen- fair and uniform to institute purpose incorrect, the end the the at 210. reviewed tencing.” Id. We sentence, i.e., can resulting rare- point, “we would be that record and determined As noted ly be shown to be unaffected. that it is even reason- to conclude unable above, in- must that the record show would ably likely that the same sentence of the Guidelines did correct calculation correct imposed if the have been selecting court not “result in the district considered.” Id. 208. were range” and “did wrong guideline from imposed.” affect is below the not when the sentence Even Williams, 202, must be un- 503 U.S. range, the record many of our harmless error Although the miscalculation ambiguous mandatory in the cases were decided Accordingly, Unit- range had no effect. they point in the same regime, a sen- Guidelines Thayer, v. we reviewed ed States advisory regime:4 under an we erred in direction the district court had tence where court would presume cannot that a district granted had also calculating rangе, sentence, given the the same departure to arrive a six-level downward correctly calcu- opportunity 214 to consider 201 F.3d at an 18-month sentence. Pollen, (3d Cir.1999). 978 F.2d at lated Guideline. See argued government because, speculation would be (noting unnecessary 89-90 remand was given the nature of a sen inappropriate the correct Guide- even if the court used decision); v. United States tencing court’s departed downward again (11th 1174, 407 F.3d 1183 Cir. levels, Crawford, 12 to range would be 18 six 2005) (‘We that, presume cannot It also contended months. Id. at 228. errors, the district court of those that, absence irrespective of the Guidelines de that a downward months would have decided considered 18 “the District Court calculating was warranted Thay- parture proper incarceration As the Court advisory range.”). guideline departed downward six levels er’s case and error for prior decisions on harmless their a novel conclusion. United 4. This is not Robinson, See, Cir. v. King, guidance. e.g., F.3d 196 United States States v. 454 2006) pr Cir.2005); (noting (1st e-Booker case law that our States United Wood, force”); advisory (5th "continues to have Cir. Villegas, F.3d 361-62 v. pr (applying e-Booker at 790-91 our Mashek, 2005); F.3d v. United States holdings under to a sentencе harmless error Cir.2005); (8th Post-Booker, Guidelines). advisory our Cir.2005). (11th Crawford, 407 F.3d 1174 appeals also have turned to courts of sister said, Appeals for the Tenth Circuit variance from it based on fac- “what the district court will do upon Icaza, resen- tors. See United States v. (8th Cir.2007) tencing (“[T]he illegal presumption absent record must ‘places speculation us in zone of clearly only show not the district ” conjecture.’ Conlan, United provide intended to an alternative (10th Cir.2007) (citation sentence, F.3d 1167 but also that the alternative sen- omitted). assumption An identifiable, the sentenc- tence was based on an correct- ing court would have arrived at the ly guidelines same calculated range.”); United precise speculation Funk, sentence (6th is indeed. Cir.2007) (“If we were to view Funk’s sen- case, In may the rare a district court simply as a sentence where ‘the dis- disregard choose to the Guidelines as too trict court independently to deviate [chose] way severe in such a that we can be cer- advisory from the guidelines range,’ we tain that the miscalculation had no effect would still need to determine whether the imposed. on the sentence district adequately justified the ex- may Flores be unusual case where the deviation.”) (citation omitted). tent of this imposed sentence was not tied to the Sentencing in post-Booker era is a range specific departure Guidelines or a or process, affixing not mere point of a Guidelines, variance from the but rather within a range mandated previously represented a discretionary sentence im- the case. 3553(a)’s posed parsimony provi- based on (3d Cir.2006). There, sion. 454 F.3d 149 urges dissent that we resolve the calculating advisory after issue before by looking us to see if the range of 70 to 87 imprisonment, months’ range correct seems close enough to the the district court sentenced Flores to 32 actual imposed. so, sentence If argu- imprisonment months’ granting without goes, a ment the sentence is “reasonable.” departure. formal Id. at appeal, However, 162. On ignores this the fact that we concluded that range the Guidelines failure to start with the correct Guideline made no difference: the “District range legal Court error that thwarts reason- clearly considered all the factors in is, 18 ableness review—that it cuts off our reaching its sentence process review before we even reach the and used its in light discretion of these issue of reasonableness. part As factors, rather application than of a sentencing process, error can occur at the specific departure, go outset, downward below Supreme as the Court noted his advisory Gall, identify and we must determine if such error appropriate sentence for Flores.” Id. is harmless. If it does not impact the Thus, the sentencing court could not be and ultimate sentence such that said to have imposed the sentence say “as a we can probably that it made no differ- any alleged result” of ence, errors the calcula- then the ultimate may be tion of the Guideline. However, reviewed for reasonableness. if this cannot be said with some degree of In order to conclude that a district court comfort, the sentence must be vacated and would not imposed have a different sen- the case remanded. tence, the record must be A clear. “blan- ket statement” that the imposed Similarly flawed is the adoption dissent’s sufficient; is fair is not a district court of a new procedural test —is the error must determine a Gall, without “insignificant”?

the miscalculation error and explain any clearly Court considered error added, noting point had not been significant, to be Guideline reasonableness imposed thwart our could have a 37-month that such errors in its including all such errors review and departing sentence without from errors. “significant” procedural listing Guidelines, and the 46 months it did im- Moreover, Gall, there is at 597. pose top, would have been at the not at the Instead, “insignificance.” legal no test bottom, proper range. barometer appropriate is the harmlessness absolutely nothing There is in the record be met. and here it cannot to indicate that the District Court would the same sentence under ANAL- OF THE V. APPLICATION lower Guidelines We must decline SEN- YSIS TO LANGFORD’S government’s invitation to affirm on TENCE theory might that the District Court present case is not that rare The imposed the same sentence. See have that an case ‍​​​‌‌‌​​‌‌‌​‌​‌​‌‌‌​‌‌​​‌‌‌​​‌‌​​​‌​‌​​‌‌​​‌​‌​‌‍where we can be sure errone 214; Thayer, 201 F.3d calculation did not affect ous Guidelines (6th Cir.2006) (hold- Duckro, 466 F.3d 438 the sentence sentencing process and that, ing even where the district court Contrary gov to the ultimately imposed. departed significantly downward from the view, we cannot conclude that ernment’s originally (incorrectly) range, calculated сriminal Langford’s of miscalculation presume one could not the court history category was harmless. departed would have less under a correct sentencing, At the District Langford’s range).5 Guidelines We are not lower Sentencing said that the Court persuaded that the record is clear that the advisory in na- “have been deemed to be imposed not a result of the sentence still, however, They remain a factor ture. sentencing range. erroneous in im- required is to consider Court 122. posing App. sentence.” The District We will remand for the District Court job considering an admirable of Court did im the sentence that should be determine 3553(a) evaluating factors and posed light of the correct Guidelines specific Langford characteristics and his range, considering the factors. So imposed The Court then a sen- offense. Helm, 277, 290 n. lem v. 463 U.S. advisory point tence at the lowest (1983) (“[I]t S.Ct. 77 L.Ed.2d 637 range it had calculated. appellate of an court to substi not the role that of the sentenc judgment tute its that the 46- government The is correct of a ing appropriateness court as to the was within the Guidelines month sentence sentence.”).6 However, particular if the either case. Indeed, might imposed overlapping area be that the given that the a sen- 5. a lower sentence tence at the low end of the erroneous Guide- court would Guidelines'calculation). range, a inference is a correct more reasonable under that it would have selected from the low end Duckro, Langford his correctly further contends because calculated of that, (finding codefendant Charles Collier has at 447 because the uncle and sentenced, variance a downward had from the low now been selected on remand. At Collier's it believed to be will be called for end of the Guidelines correct, departed might sentencing, the District Court down- it “it stands to reason history category and present- when ward one choose an even lower sentence levels, Harris, that Collier's sen- range); twelve offense such ed with” a lower months, mandatory with a statu- (suggesting proper inference to tence was 57 that the months, for a tory minimum of 84 imposed at the bottom consecutive draw from a sentence uniformity goals step determining The the third of whether the discretion are furthered a remand. in light is reasonable Where we conclude that the Distriсt Court Mashek, factors. See might up have ended with a different sen- at 1020. right point,

tence had started giving opportunity the Court the to recon- VII. CONCLUSION right sider the at the start reasons, foregoing For the we will va- place resentencing actually affords def- Langford’s cate sentence and remand to respect erence and for the District Court resentencing. the District Court for judge. Our failure to do so would be presumptuous part; on our it is not our WEIS, Judge, Dissenting. Circuit say sentencing judge role to that the would I agree majority’s with the conclusion gave, consider the sentence he which was that the District in treating Court erred at the incorrectly low end of the calculated juvenile adjudica- the discontinuance of a appropriate to be when the correct purpose tion as a sentence for the Guideline is lower than was as- 4A1.2(a). U.S.S.G. resulting addi- Moreover, insisting sumed. aon uniform tion of a point to the defendant’s criminal point departure from which all sentenc- history category modified his from III to ing courts can exercise their discretion TV, changing applicable the promotes uniformity in the sentencing of range for Counts One and Two from 37-46 history defendants with similar criminal months to 46-57 months. The miscalcula- Surely, and offense levels. a remand with tion, however, did not make the sentence opportunity reasoning required anew is unreasonable. in The record shows that goals. order to further both

Guidelines computation did not contami- VI. LANGFORD’S REMAINING nate the final 46-month sentence and

ARGUMENT served as a sufficient benchmark for the analysis. Court’s imposed The sentence Langford argues also that his sentence satisfies this Court’s reasonableness re- was unreasonable because the District view based on consideration of all by Court violated the law the 18 giving presump- weight tive It to the Guidelines factors. is imposing also consistent with our greater necessary suggestion than to meet Jackson, purposes sentencing.7 Because 467 F.3d 834 Cir.2006), Langford was sentenced as a result of an some errors in Guidelines Guidelines, harmless, incorrect application of the calculations “can be as the sen- sentence fails the first step of our Gunter after a district court exer- and, therefore, we need not reach cises its discretion in step three ... is contentions, Langford suggests total of 141 months. 7. As to these it is clear that a disparity sentencing, giv in order to avoid give presumptive district court should not status, en age, Collier's career offender Guidelines, Gall, weight to the 128 S.Ct. at offense, likely depart role in the the Court will 597, that, "may determine ... downward for his sentence as well. We will case, particular a within-Guidelines sentence speculate any departures

not as to downward 'greater necessary’ objec- is than to serve the make, may may the Court or not but note that sentencing.” Kimbrough, tives of Ct. 128 S at to, may, required Court but is not take the 564. disparity resentencing Lang into account in Parker, ford. See United States v. 273, (3d Cir.2006). 276-78 1, 1987, the effective date of Id. November review.” subject to our reasonableness the first set of Guidelines and 18 U.S.C. n. 6. at 839 3553, judi ushered an era of limited in sentencing. rigid cial discretion The I. mandatory system survived un to understand helpful brief A Booker, by til set aside of the twentieth issue here. For most 543 U.S. 160 L.Ed.2d under a century operated federal courts (2005). case, system indeterminate which long-standing mandatory held that the nature of Court to sentence defen- gave judges discretion the Sixth Amend the Guidelines violated by set Con- dants within a broad judges in certain requiring ment situa States, Mistretta v. United gress. impose tions to an enhanced sentence 361, 363-65, 109 S.Ct. U.S. by jury. based on facts not found Id. at (1989) (“[Ujnder the indetеr- L.Ed.2d 714 244, 125 738. S.Ct. Congress defined system, minate-sentence remedy infirmity, To the constitutional maximum, judge imposed a [and] provisions two Court excised (which statutory within the First, Sentencing Act. Reform Court usually replace proba- could with he 3553(b)(1), making removed 18 U.S.C. tion)....”). “effectively advisory.” Id. the Guidelines with the “[Widespread dissatisfaction left the 125 S.Ct. 738. disparities” intact, in sen- reasoning uncertainties and the remainder alterations this tencing arrangement preserved led to drastic best Con such an Sentencing Reform system through increased unifor gress’ promote intent to flexibility Act of 1984.8 Id. S.Ct. mity preserving while indi 263-65, States Sen- sentencing. The Act created the United Id. at vidualized result, pro- and directed it to tencing sentencing Commission As a S.Ct. 738. establishing narrow mulgate longer impose penal Guidelines no bound to were sentences for cate- ranges range, of determinate a a fixed ty point at set within gories of offenses and defendants. required were to “take account Congress provided §§ along U.S.C. with the other sentenc Guidelines” 3553(a). sentencing § list of factors that in Id. at 259- ing factors listed determining Second, should consider when the Court sev 125 S.Ct. 738. range point appellate provision within new Guidelines an review ered imposed. mandatory whiсh the sentence should be nature of the depended on the 3553(a). 3742(e), Guidelines, § § U.S.C. and in its 18 U.S.C. appellate courts to review stead directed Congress also declared based on the sentences for reasonableness courts, ranges binding except would be on 3553(a) § application trial court’s departure where in limited circumstances 261-62, 125 S.Ct. 738. factors. Id. permitted. from the would be 3553(b). Judges required § were II. for the open to state in court the reasons bring are intended to “give specif- and to The Guidelines final sentence an uniformity sentencing, important any departure. 18 U.S.C. ic reasons” 3553(c). justice. The Commission goal for criminal 98-473, (1984). 8. Pub.L. No. 98 Stat. 1987 explicitly ensure that offenders fact that directs attempted “[t]he

had to sentencing receive similar courts to consider the Guide- with similar circumstances supports premise that district Although there is merit to the lines sentences.9 uniformity, begin courts must ‍​​​‌‌‌​​‌‌‌​‌​‌​‌‌‌​‌‌​​‌‌‌​​‌‌​​​‌​‌​​‌‌​​‌​‌​‌‍their with the concept of national the Sen- cognizant and remain of them ap- “one-size-fits-all” tencing Commission’s Gall, sentencing throughout sentencing process.” re- proach led to a mechanical 128 S.Ct. at 597 n. 6. gime disparities that created its own injustices.10 Although Supreme pre- Court has line of cases is in tension

The Booker continuing role of the Guide- served uniformity. concept with the of national lines, it has limited their influence — States, Kimbrough See v. United U.S. Rita, Gall, process. In -, 558, 574, 169 L.Ed.2d 481 128 S.Ct. Kimbrough, sought remedy the Court (“[0]ur (2007) opinion recog- Booker many the errors of courts that “continued departures from uniformi- nized that some virtually to treat the Guidelines as manda- ty necessary remedy were a cost of the we Rita, (Stevens, J., tory,” 127 S.Ct. at 2474 adopted.”). declaring the Guidelines concurring), by reemphasizing their advi- advisory, mandatory, rather than the Su- sory nature as well as the broad discretion preme restored much of the discre- Court 3553(a). granted sentencing courts under previously possessed. tion district courts (“A See, e.g., Kimbrough, 128 S.Ct. at 564 judge district must include the Guidelines authority approved, The the Court has array in the warranting factors however, is limited the role the Guide- determine, .... may consideration [but] play sentencing. The still Guide- that, however, case, particular important part lines remain of the sen- ‘greater within-Guidelines sentence is than post -Booker. tencing process objectives necessary’ to serve the of sen- The Court has stated that “the 3553(a))). tencing.” (quoting 18 U.S.C. starting should be the that, point explained and the initial benchmark” for sen- after deter- determinations, tencing mining Gall v. United the Guidelines — States, U.S. -, 586, 596, judge must “consider all of the (2007), they 169 L.Ed.2d 445 because “in the support factors determine whether case, ordinary requested by party. the Commission’s recom the sentence In so sentencing may of a doing, presume mendation will ‘re he not that the Guide- rough approximation flect a of sentences lines is reasonable. He must make 3553(a)’s § might ” objec that achieve an individualized assessment based on the Gall, Kimbrough, (quot tives.’ at 574 at presented.” S.Ct. facts 128 S.Ct. 596- — States, (internal U.S. -, omitted); ing Rita v. United citation see also -, (the 2456, 2465, 168 L.Ed.2d 203 Kimbrough, S.Ct. Guide- (2007)). explained only The Court also that among “serve as one factor sev- Commission, establishing thoughtful pre-Booker In the statute 10. For criticism of the should, alia, Congress stated that it inter "es- system, see Albert W. Alschuler: sentencing policies practices tablish Sentencing The Failure Guidelines: A Plea of justice system the Federal criminal that ... Aggregation, Less 58 U. Chi. L.Rev. 901 sentencing disparities unwarranted avoid[ ] Bowman, III, (1991); Frank O. The Failure of among defendants with similar records who Sentencing the Federal Guidelines: A Structur- guilty have been found of similar criminal (2005). Analysis, al 105 Colum. L.Rev. 1315 991(b)(1)(B). § conduct.” 28U.S.C. determining setting to be taken into account the final courts must consider erаl sentence.”)-11 sentence. appropriate emphasis shows The Court’s Recognizing the Guidelines are no granted not be that the Guidelines should longer given primacy complex “array of fac- weight over the presumptive 3553(a) § calculus also resolves the conflict tors,” Kimbrough, 128 S.Ct. at consid- ability im- between the district court’s 3553(a) analysis. § After ered a sentence tailored to the offender’s pose Booker, purpose of the Guide- primary Congress’ individual circumstances and the sentenc- provide lines calculation is to uniform goal predictable sentences. ing court with a “benchmark” or center This conclusion is bolstered when one con- on which to base the reasonableness siders that to some extent there is an 3553(a) sentencing judge § analysis. overlap between the factors “rough is not bound to remain within the during the court considers Guidelines com- provided by the Guidelines approximation” 3553(a) § putation and the calculus. sentence a defendant range, may 3553(a) factors at a based on the other III. point anywhere within a zone of reason- surrounding pro- the benchmark ableness guide considerations also our re- These by As we said vided Appellate view. “must first ensure Jimenez, 513 F.3d 62 signif- that the district court committed no “[rjeasonableness (3d Cir.2008), ais error, procedural failing icant such as job and our is to ensure that the district (or improperly calculating) calculate properly exercised its discretion range, treating the Guidelines imposing a sentence within the mandatory, failing to consider the [or] logically reasonableness based 3553(a) Gall, factors.” 128 S.Ct. at 597 with, upon, and consistent added). they (emphasis give Then must factors.” Id. at 90-91. sentencing judge’s due deference to the final promotes flexibility by This determination under procedure point impose of a at which to the sentence. Id. allowing the formulation Rita, 597; see at 2469 represents a resolution of the often con- also S.Ct. (“The to, judge has flicting public, Congress, views of the law access with, enforcement, the individual case greater familiarity and courts. The Guidelines him and the individual defendant before provide ranges national and thus set appeals or guideposts that district courts can consult than Commission court.”). pondering before the other factors are Circuit, (3) they required Finally, are to exercise In this courts should following steps: considering obsеrve the relevant their discretion 3553(a) "(1) setting § calculate a factors in the sentence Courts must continue to precisely regardless defendant's Guidelines sentence they impose whether it varies they would have before Booker. under from the sentence calculated so, (2) doing they formally rule on must Guidelines.” parties the motions both and state on the Gunter, (3d United States v. F.3d they granting depar- record whether are a citations, brackets, Cir.2006) (internal departure affects the ture and how that omitted). quotation marks calculation, and take into ac- law, pre-Booker count our Circuit's case advisory which continues to have force.

Rita, Gall, Kimbrough § show that In its discussion factors. hinges ruling, proper review on the reasonable- final the District Court’s use appellate ness of the ultimate sentence as based on of all the 3553 factors to reach the ulti- 3553(a) analysis, insignificant the total rather than on mate sentence can make its the calculation of the Guidelines in the Guidelines calculation. errors The reasonableness of a sentence will not by an “insignificant”

be vitiated error IV. The Guidelines calculation. presents This case situation where an computation performed should be careful- insignificant miscalculation the Guide- ly, range— designed produce is to computation lines did not result in an un- Consequently, designated point. not a reasonable sentence. The sentence was pre- Guidelines calculation need not be as simply not within the zone of reasonable- an engineering drawing. cise as proper range, ness around the enough play system There is itself, range but was in fact within that Although a allow for harmless error. sen- Rita, albeit at its extreme. See 127 S.Ct. may be unreasonable if a district (noting judge’s at 2463 that a choice of a clearly court makes factual erroneous find- sentence within the Guidelines ings determining when the Guidelines judgment means that his accords with that plain doctrines of error or Sentencing Commission and “in- harmless error can apply preserve the creases the likelihood that the sentence is Jimenez, imposed. See one.”); a reasonable see also United States Grier, (citing at 84-85 (3d Cir.2006) Cooper, Cir.2007)); F.3d see also (“A guide- sentence that falls within the Booker, 543 U.S. 125 S.Ct. 738 likely is more to be reasonable (stating appellate that reviewing than guidelines range.”). one outside the “аpply ordinary pruden- sentences should Court, recognizing The District waiver, error, tial plain doctrines” such as ... Guidelines were “still a factor that error). and harmless required in im- [sic] is to consider erroneous, If computations, even if sentence,” posing gave “respect- them the judge lead the district to consider a rea- they ful consideration” were due. Kim- sonable sentences is not a brough, 570. Because the marked deviation from the national esti- thorough analy- District Court conducted a provided by mate the correct Guidelines sis ‍​​​‌‌‌​​‌‌‌​‌​‌​‌‌‌​‌‌​​‌‌‌​​‌‌​​​‌​‌​​‌‌​​‌​‌​‌‍of the factors and evaluated range, they have proper fulfilled their role applicable the characteristics to the defen- promoting uniformity. They national offense, dant and his the erroneous Guide- played also a role that satisfies significantly lines calculation did not infect 3553(a)(4)’s requirement the sen- the final determination. The tencing court review “the kinds of sentence sentence, therefore, easily final 46-month and the sentencing range” for the offense. satisfies a reasonableness review. that appel- Court confirmed Accordingly, I affirm judg- would late courts can require continue to ment of the District Court. strong showing to sustain a final sentence outside the Guidelines Gall, 128 S.Ct. at justification supplied by can be

strength of the reasoning court’s

Case Details

Case Name: United States v. Langford

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 22, 2008

Citation: 516 F.3d 205

Docket Number: 06-2774

Court Abbreviation: 3rd Cir.