Lead Opinion
OPINION OF THE COURT
Shawn Langford appeals the sentence imposed after he pled guilty to bank robbery in violation of 18 U.S.C. § 2113(a), armed bank robbery in violation of 18 U.S.C. § 2113(d), and carrying and brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Langford was sentenced to 46 months’ imprisonment for Counts One and Two, to be served concurrently, and a mandatory term of 84 months’ imprisonment for Count Three, to be served consecutively, for a total of 130 months’ imprisonment. Langford argues that the District Court improperly calculated his criminal history score and consequently chose an erroneous Sentencing Guidelines range as the first step in the sentencing process, and that he should therefore be resentenced. The government urges that the error is harmless because the applicable Guidelines range overlaps with the correct range. The application of the harmless error standard to a sentence in this fact setting is an issue of first impression in our Court. We will join our sister courts of appeals who have decided this issue and hold that the error is not harmless. We will accordingly vacate Langford’s sentence and remand to the District Court for resentencing.
I. FACTS AND PROCEDURAL HISTORY
On March 9, 2005, Langford and his uncle, Charles Collier, a career criminal, robbed the Iron and Glass Bank in Scott Township, Pennsylvania. PSR ¶ 5-6. Armed with a pistol, Langford remained in the lobby while Collier vaulted the teller counter, announced the robbery, and emptied the money from the teller drawers. PSR ¶ 7. Both men fled, were captured by
Langford was indicted for bank robbery in violation of 18 U.S.C. § 2113(a), armed bank robbery in violation of 18 U.S.C. § 2113(d), and carrying and brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). He pled guilty to the charges on December 20, 2005. App. 85.
Langford was eighteen years old at the time of the bank robbery and this was his first adult offense. App. 34. Langford does, however, have a history of adjudications as a juvenile. In the Presentence Investigation Report (“PSR”), the probation officer concluded that consideration of three of Langford’s prior adjudications of juvenile delinquency resulted in five criminal history points.
The two adjudications not at issue on appeal were as follows:
1. In 2001, at age fourteen, Langford was adjudicated delinquent for criminal conspiracy, possession, and possession with intent to deliver crack cocaine and ordered committed to a Community Intensive Supervision Program (and subsequently a detention center for violating the terms of his program). PSR ¶ 31, App. 126.
2. In 2003, at age sixteen, he was adjudicated delinquent for robbery, criminal conspiracy, and fleeing the police. PSR ¶ 32.
While the charges were pending for his second offense, Langford was released with electronic home monitoring. He failed to appear for arraignment and a warrant was issued. On September 29, 2003, he was apprehended by the police as he attempted to steal a vehicle. PSR ¶ 33. That same day, a petition for his second adjudication was filed in juvenile court charging the defendant with the previous robbery charge. PSR ¶ 32. As to the robbery charge, he was adjudicated delinquent on October 28, 2003 and committed to a youth development center. PSR ¶ 32. On October 28, 2003, he was also adjudicated delinquent as to criminal attempt (auto theft), possession of instruments of crime, resisting arrest, criminal mischief, and disorderly conduct. The court discontinued that third adjudication and, according to the PSR, ordеred the defendant to provide a DNA sample. PSR ¶ 33. This third adjudication (the “auto theft adjudication”) is at issue on appeal.
Because the 2005 bank robbery occurred less than two years after Langford’s release from juvenile commitment to a youth development center, the probation officer added an additional criminal history two points, establishing a criminal history category of IV. PSR ¶ 33.
At sentencing, Langford’s counsel argued that the appropriate criminal history category was III, rather than IV, because the last adjudication did not result in a sentence and, accordingly, no point should have been added. App. 116. The Court disagreed and calculated a criminal history category of IV which, when combined with a total offense level of 19, resulted in a Sentencing Guidelines range of 46 to 57 months’ incarceration for Counts One and Two. App. 123. Langford was sentenced to 46 months for Counts One and Two, to be served concurrently. For Count Three, carrying and brandishing a firearm during a crime of violence, Langford was subject to a mandatory minimum term of 84 months’ imprisonment to be served consecutively to the bank robbery charges. Langford’s totаl sentence, therefore, was 130 months’ imprisonment. Langford does not appeal his sentence for Count Three, but rather contends that the District Court miscalculated the Sentencing Guidelines range for Counts One and Two, thus resulting in a longer overall sentence.
II. CALCULATION OF LANGFORD’S CRIMINAL HISTORY CATEGORY
Langford argues that the District Court should not have imposed a criminal history point for his juvenile adjudication for attempted auto theft because it resulted in a “discontinuance” of the delinquency petition. He maintains that a discontinuance is not a “sentence” within the meaning of U.S.S.G. § 4A1.2(a). Because no “sentence” was imposed, the adjudication should not have been counted, and the proper criminal history category was III, not IV. Accordingly, the Sentencing Guidelines range should have been 37 to 46 months.
U.S.S.G. § 4A1.2(a)(1) defines a prior sentence as “any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense.” To be sure, аs the government argues, juvenile adjudications are not exempted from the calculation of a defendant’s criminal history score. United States v. Bucaro,
The key question is whether the discontinuance of Langford’s auto theft adjudication constitutes a “sentence” under the Guidelines. We must review the operations of the Pennsylvania juvenile system to determine whether a “discontinuance” falls within the definition of a prior “sentence” set forth in U.S.S.G. § 4A1.2. See United States v. McKoy,
In Pennsylvania, a juvenile delinquency adjudication requires a court to find beyond a reasonable doubt that a child committed acts that would constitute crimes if committed by an adult. See 42 Pa.C.S.A. § 6341(b). Typically, the court then orders a disposition. Completed with the aid of a comprehensive social study and investigation, a disposition may operate as the functional equivalent of an adult sentence. See id. § 6339. However, “[i]f the court finds that the child is not in need of treatment, supervision or rehabilitation it shall dismiss the proceeding and discharge the
In the PSR for Langford’s sentencing, the probation officer added one criminal history point for this adjudication in reliance on U.S.S.G. § 4A1.2(a)(3), which provides that “[a] conviction for which the imposition or execution of sentence was totally suspended or stayed shall be counted as a prior sentence under § 4A1.1(c).” Langford objected on the ground that no sentence had actually been imposed. In response, the probation officer admitted that the adjudication had resulted in the “imposition of no sentence,” yet reached the improbable conclusion that it could be counted as a prior sentence because “[t]he imposition of no sentence, as occurred here, is akin to a ‘suspended’ sentence.” PSR 2d Addendum. On appeal, the government asks us to use this analogy to find that the discontinuance was a sentence.
If in fact the juvenile court had imposed probation or a suspended sentence, our review would end here. The juvenile court, however, did not impose a sentence and then suspend its оperation; it discontinued the action. Refusing to impose a sentence is not the same as suspending a sentence. Black’s Law Dictionary 1446 (6th ed.1992) (defining a suspended sentence as “[a] conviction of a crime followed by a sentence that is given formally, but not actually served”). Even if we understood the juvenile court to have continued the disposition hearings under 42 Pa.C.S. § 6341(e) (which we do not), we would not count a continuance as a “sentence” under the Guidelines as this is, in essence, a juvenile diversion. See U.S.S.G. § 4A1.2(f) (noting that “[a] diversionary disposition resulting from a finding or admission of guilt, or a plea of nolo contendere ” from a juvenile court is not considered a sentence under § 4A1.1(c)); United States v. McKoy,
The government refers us to no authority from which we can find that a discontinuance by a juvenile court constitutes a sentence. Instead, it cites numerous eases where courts reached the unremarkable conclusion that a suspended or probationary sentence constitutes a sentence under U.S.S.G. § 4A1.2(a). See, e.g., United States v. Holland,
Lastly, the government urges us to assume that the juvenile court discontinued Langford’s attempted auto theft adjudication only beсause Langford had already been committed to a juvenile institution on a separate offense, so that “there was simply no reason for the juvenile court to impose such a sentence once again a few weeks later.” Appellee’s Br. at 17. We decline the government’s invitation to engage in conjecture. Even if we were able to ascertain the juvenile court’s motives, they are irrelevant; the essential fact here is that the court discontinued the petition and did not impose a sentence.
In light of the foregoing, we hold that the discontinuance of the juvenile adjudication here is not a sentence for the purposes of U.S.S.G. § 4A1.2(a) and should not have been used in the calculation of the
Since the discontinuance of a juvenile adjudication cannot be considered a sentence for the purpose of U.S.S.G. § 4A1.2(a), adding a point to Langford’s criminal history on the basis of this adjudication was error. This error, in turn, affected the calculation of the overall criminal history category — moving it from category III to IV — and the subsequent Guidelines range calculation — changing it from a range of 37 to 46 mоnths for Counts One and Two to a range of 46 to 57 months.
III. THE EFFECT OF AN INCORRECT GUIDELINES CALCULATION
Although the Guidelines are now advisory and a sentencing court has great discretion over the substance of the sentence, the correct calculation of the applicable Guidelines range remains an important procedural requirement. First of all, as before Booker, the sentencing court is required to calculate the Guidelines range in each case, and that calculation is the focus of the parties’ arguments. Second, a district court is required to consider the Guidelines range, pursuant to § 3553(a)(4), and use that range as a starting point for the entirety of the § 3553(a) analysis. Based on its consideration of the § 3553(a) factors, the Court must state the reasons for its sentence and explain whether a within-Guidelines sentence is appropriate in the particular case, a process which generally will require a correct Guidelines calculation. Third and finally, a correctly calculated Guidelines range will often be a necessary precondition of our reasonableness review. Where a district court begins with an erroneous range, it will be difficult for us to determine that it fulfilled its duty to consider the Guidelines and reason through to the ultimate sentence. We will discuss these considerations in turn.
A. Duty to calculate the Guidelines range in each individual case
In rendering the Guidelines advisory, the Supreme Court made clear that sentencing courts are required to “consider” the Guidelines in crafting a sentence. United States v. Booker,
(1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker.
(2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force.
(3) Finally, they are to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless of whether it varies from the sentence calculated under the Guidelines.
B. The “starting point” of a district court’s § 3553(a) analysis
The correct Guidelines calculation is not merely one of three steps, but rather constitutes the “natural starting point” from which the sentencing court exercises its discretion under § 3553(a) at Gunter's third step. United States v. Cooper,
An erroneous calculation of the Guidelines will frustrate the sentencing court’s ability to give meaningful consideration to “the kinds of sentence and the sentencing range established for ... the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines .... ” as required by 18 U.S.C. § 3553(a)(4). The Supreme Court recently noted that “[a] district judge must include the Guidelines range in the array of factors warranting consideration.” Kimbrough v. United States, — U.S. -,
Thе proper Guidelines benchmarks — offense level, criminal history, enhancements, and ultimate range — are necessary prerequisites to a court’s analysis under § 3553(a)(4) in general and, more specifically, § 3553(a)(6) (concerning disparity between defendants) and § 3553(a)(5) (having to do with the Sentencing Commission commentary). For example, where a court miscalculates a defendant’s criminal history, its attempts to avoid disparity between defendants pursuant to § 3553(a)(6) will be misguided as it ineluctably will
Moreover, a sentencing court’s exercise of its discretion to impose a sentence outside the Guidelines range or to determine that “a within-Guidelines sentence is ‘greater than necessary’ to serve the objectives of sentencing,” Kimbrough,
Imposing a sentence outside the correctly calculated Guidelines range without explanation would fly in the face of the Supreme Court’s and our precedent. As the Supreme Court noted in Rita v. United States, § 3553(c) calls for a sentencing judge “at the time of sentencing” to “state in open court the reasons for its imposition of the particular sentence.” — U.S. -,
[i]f, after calculating the appropriate Guidelines, a district judge finds that the imposition of a within-Guidelines sеntence would visit an injustice upon the defendant pursuant to 18 U.S.C. § 3553(a), it is incumbent upon the judge to say so, and sentence below the Guidelines range. Conversely, when the Guidelines range is too low to satisfy 18 U.S.C. § 3553(a), the district judge must explain why this is so and vary upward.
C. An incorrect calculation of the Guidelines range can thwart reasonableness review
Our reasonableness review relies on a district court’s reasoning from the starting point of the correctly calculated Guidelines through the § 3553(a) factors. Our Court, our sister courts of appeals, and the Supreme Court agree that a district court’s use of the incorrect Guidelines range impedes our ability to conduct review of the ultimаte sentence.
We have emphasized that a sentencing court’s failure to execute Gunter’s first step will tend to thwart our reasonableness review. See Jackson,
Our sister courts of appeals agree that “the correct guidelines range is still the critical starting point for the imposition of a sentence” and a prerequisite to reasonableness review. Crawford,
The importance of a correctly calculated range to our reasonableness review is evident in the Supreme Court’s opinions as well. While Gall reinforced a district court’s discretionary authority to choose the substance of a sentence, it also clarified the role of courts of appeals in reviewing procedural and substantive errors in sentencing. In both Gall and Kimbrough, the Court began by noting that the sentencing court had properly calculated and considered the advisory Guidelines range and only then turned to the sentencing court’s consideration of the § 3553(a) factors. Kimbrough,
In sum, while “the district court is free to make its own reasonable applicаtion of the § 3553(a) factors, and to reject (after due consideration) the advice of the Guidelines,” Kimbrough,
IV. HARMLESS ERROR IN THE SENTENCING CONTEXT
We suggest that, given the importance of a correct Guidelines calculation both to the sentencing process that district courts are required to conduct and to our ability to carry out reasonableness review, the use of an erroneous Guidelines range will typically require reversal under 18 U.S.C. § 3742(f). Nonetheless, under certain, limited circumstances, miscalculation of the Guidelines may be harmless. The government urges that this is one such time because the correct and incorrect ranges here overlap. We are not so sure.
According to our traditional harmless error standard, a non-constitutional error is harmless when “it is highly probable that the error did not prejudice” the defendant. Government of Virgin Islands v. Toto,
We submit that the improper calculation of the Guidelines range can rarely be shown not to affect the sentence imposed. In the typical case in which an error in the calculating of Sentencing Guidelines has been held harmless, the sentence was dictated not by the erroneously calculated Guideline, but by a statutory minimum or maximum or another properly calculated Guideline. United States v. Frazier,
The government contends that a sentencing error is also harmless where, as here, the sentence imposed falls into the “overlap” between the incorrect Guidelines range used by the sentencing court and the correct Guidelines range. Although some courts have adopted an “overlapping range” rationale, we conclude that such an “overlap” does not necessarily render an error in the Guidelines calculation harmless. Such an overlap, alone, proves too little. The record must show that the sentencing judge would have imposed the same sentence under a correct Guidelines range, that is, that the sentencing Guidelines range did not affect the sentence actually imposed. The overlap may be helpful, but it is the sentencing judge’s reasoning, not the overlap alone, that will be determinative.
In United States v. Knight, we made clear that we do not agree that an overlap between ranges renders an еrror harmless.
Even when the sentence is below the Guidelines range, the record must be unambiguous that the miscalculation of the range had no effect. Accordingly, in United States v. Thayer, we reviewed a sentence where the district court had erred in calculating the range, but had also granted a six-level downward departure to arrive at an 18-month sentence.
Moreover, when the starting point for the § 3553(a) analysis is incorrect, the end point, i.e., the resulting sentence, can rarely be shown to be unaffected. As noted above, the record must show that the incorrect calculation of the Guidelines did not “result in the district court selecting from the wrong guideline range” and “did not affect the sentence imposed.” Williams,
In the rare case, a district court may choose to disregard the Guidelines as too severe in such a way that we can be certain that the miscalculation had no effect on the sentence imposed. United States v. Flores may be that unusual case where the sentence imposed was not tied to the Guidelines range or a specific departure or variance from the Guidelines, but rather represented a discretionary sentence imposed based on 3553(a)’s parsimony provision.
In order to conclude that a district court would not have imposed a different sentence, the record must be clear. A “blanket statement” that the sentence imposed is fair is not sufficient; a district court must determine a Guidelines range without the miscalculation error and explain any variance from it based on § 3553(a) factors. See United States v. Icaza,
The dissent urges that we resolve the issue before us by looking to see if the correct range seems close enough to the actual sentence imposed. If so, the argument goes, the sentence is “reasonable.” However, this ignores the fact that the failure to start with the correct Guideline range is legal error that thwarts reasonableness review — that is, it cuts off our review process before we even reach the issue of reasonableness. As part of the sentencing process, error can occur at the outsеt, as the Supreme Court noted in Gall, and we must determine if such error is harmless. If it does not impact the analysis and ultimate sentence such that we can say that it probably made no difference, then the ultimate sentence may be reviewed for reasonableness. However, if this cannot be said with some degree of comfort, the sentence must be vacated and the case remanded.
Similarly flawed is the dissent’s adoption of a new test — is the procedural error “insignificant”? In Gall, the Supreme Court clearly considered error in the
V. APPLICATION OF THE ANALYSIS TO LANGFORD’S SENTENCE
The present case is not that rare case where we can be sure that an erroneous Guidelines calculation did not affect the sentencing process and the sentence ultimately imposed. Contrary to the government’s view, we cannot conclude that the miscalculation of Langford’s criminal history category was harmless.
At Langford’s sentencing, the District Court said that the Sentencing Guidelines “have been deemed to be advisory in nature. They still, however, remain a factor that Court is required to consider in imposing sentence.” App. 122. The District Court did an admirable job of considering the 3553(a) factors and evaluating the characteristics specific to Langford and his offense. The Court then imposed a sentence at the lowest point in the advisory Guidelines range it had calculated.
The government is correct that the 46-month sentence was within the Guidelines range in either case. However, if the criminal history point had not been added, the Court could have imposed a 37-month sentence without departing from the Guidelines, and the 46 months it did impose would have been at the top, not at the bottom, of the proper range.
There is absolutely nothing in the record to indicate that the District Court would have imposed the same sentence under a lower Guidelines range. We must decline the government’s invitation to affirm on the theory that the District Court might have imposed the same sentence. See Thayer,
We will remand for the District Court to determine the sentence that should be imposed in light of the correct Guidelines range, considering the 3553(a) factors. Solem v. Helm,
VI. LANGFORD’S REMAINING ARGUMENT
Langford also argues that his sentence was unreasonable because the District Court violated the law by giving presumptive weight to the Guidelines and imposing a sentence greater than necessary to meet the purposes of sentencing.
VII. CONCLUSION
For the foregoing reasons, we will vacate Langford’s sentence and remand to the District Court for resentencing.
Notes
. At oral argument, the government changed tactics sоmewhat and argued that only a juvenile diversion is not a sentence under § 4A1.2(f) and that the adjudication of guilt was akin to a concurrent sentence. Neither of these contentions have merit.
. The government also argues for the first time on appeal that the juvenile court’s order that was issued prior to the discontinuance of the petition, requiring Langford to provide a DNA sample, was sufficient to amount to a sentence. Appellee’s Br. at 18. As Langford rightly observes, the cases cited by the government provide no support for this proposition, Appellee’s Br. at 17, and we have independently found none. We reject this argument.
. See United States v. Harris,
. This is not a novel conclusion. United States v. King,
. Indeed, given that the Court imposed a sentence at the low end of the erroneous Guidelines range, a more reasonable inference is that it would have selected from the low end of the correctly calculated range. Duckro,
. Langford further contends that because his uncle and codefendant Charles Collier has now been sentenced, a downward variance will be called for on remand. At Collier's sentencing, the District Court departed downward one criminal history category and twelve offense levels, such that Collier's sentence was 57 months, with a mandatory statutory consecutive minimum of 84 months, for a
. As to these contentions, it is clear that a district court should not give presumptive weight to the Guidelines, Gall,
Dissenting Opinion
Dissenting.
I agree with the majority’s conclusion that the District Court erred in treating the discontinuance of a juvenile adjudication as a sentence for the purpose of U.S.S.G. § 4A1.2(a). The resulting addition of a point to the defendant’s criminal history modified his category from III to TV, changing the applicable Guidelines range for Counts One and Two from 37-46 months to 46-57 months. The miscalculation, however, did not make the sentence unreasonable. The record shows that the Guidelines computation did not contaminate the final 46-month sentence and served as a sufficient benchmark for the Court’s analysis. The sentence imposed satisfies this Court’s reasonableness review based on consideration of all the 18 U.S.C. § 3553(a) sentencing factors. It is also consistent with our suggestion in United States v. Jackson,
I.
A brief history is helpful to understand the issue here. For most of the twentieth century federal courts operated under a long-standing indeterminate system which gave judges discretion to sentence defendants within a broad range set by Congress. Mistretta v. United States,
“[Widespread dissatisfaction with the uncertainties and the disparities” in sentencing led to drastic alterations in this system through the Sentencing Reform Act of 1984.
Congress also declared the Guidelines ranges would be binding on courts, except in limited circumstances where departure from the range would be permitted. 18 U.S.C. § 3553(b). Judges were required to state in open court the reasons for the final sentence imрosed and to “give specific reasons” for any departure. 18 U.S.C. § 3553(c).
November 1, 1987, the effective date of the first set of Guidelines and 18 U.S.C. § 3553, ushered in an era of limited judicial discretion in sentencing. The rigid mandatory Guidelines system survived until set aside by United States v. Booker,
To remedy the constitutional infirmity, the Court excised two provisions of the Sentencing Reform Act. First, the Court removed 18 U.S.C. § 3553(b)(1), making the Guidelines “effectively advisory.” Id. at 245,
II.
The Guidelines are intended to bring uniformity in sentencing, an important goal for criminal justice. The Commission
The Booker line of cases is in tension with the concept of national uniformity. See Kimbrough v. United States, — U.S. -,
The authority the Court has approved, however, is limited by the role the Guidelines still play in sentencing. The Guidelines remain an important part of the sentencing process post -Booker.
The Supreme Court has stated that “the Guidelines range should be the starting point and the initial benchmark” for sentencing determinations, Gall v. United States, — U.S. -,
Although the Supreme Court has preserved the continuing role of the Guidelines, it has limited their influence in the sentencing process. In Rita, Gall, and Kimbrough, the Court sought to remedy the errors of many courts that “continued to treat the Guidelines as virtually mandatory,” Rita,
The Court explained that, after determining the Guidelines range, a sentencing judge must “consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, he may not presume that the Guidelines range is reasonable. He must make an individualized assessment based on the facts presented.” Gall,
The Supreme Court’s emphasis shows that the Guidelines should not be granted presumptive weight over the “array of factors,” Kimbrough,
This procedure promotes flexibility by allowing the formulation of a sentence that represents a resolution of the often conflicting views of the public, Congress, law enforcement, and courts. The Guidelines provide national ranges and thus set guideposts that district courts can consult before pondering the other factors that are to be taken into account in setting the final sentence.
Recognizing that the Guidelines are no longer given primacy in the complex § 3553(a) calculus also resolves the conflict between the district court’s ability to impose a sentence tailored to the offender’s individual circumstances and Congress’ goal of uniform and predictable sentences. This conclusion is bolstered when one considers that to some extent there is an overlap between the factors a sentencing court considers during the Guidelines computation and the § 3553(a) calculus.
III.
These considerations also guide our review. Appellate courts “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, [or] failing to consider the § 3553(a) factors.” Gall,
There is enough play in the system to allow for harmless error. Although a sentence may be unreasonable if a district court makes clearly erroneous factual findings when detеrmining the Guidelines range, the doctrines of plain error or harmless error can apply to preserve the sentence imposed. See Jimenez,
If the computations, even if erroneous, lead the district judge to consider a reasonable range of sentences that is not a marked deviation from the national estimate provided by the correct Guidelines range, they have fulfilled their proper role of promoting national uniformity. They have also played a role that satisfies § 3553(a)(4)’s requirement that the sentencing court review “the kinds of sentence and the sentencing range” for the offense. The Supreme Court confirmed that appellate courts can continue to require a strong showing to sustain a final sentence that is imposed outside the Guidelines range, Gall,
IV.
This case presents a situation where an insignificant miscalculation in the Guidelines computation did not result in an unreasonable sentence. The sentence was not simply within the zone of reasonableness around the proper Guidelines range, but was in fact within that range itself, albeit at its extreme. See Rita,
The District Court, in recognizing that the Guidelines were “still ... a factor that Court [sic] is required to consider in imposing sentence,” gave them the “respectful consideration” they were due. Kim-brough,
Accordingly, I would affirm the judgment of the District Court.
. Pub.L. No. 98-473, 98 Stat. 1987 (1984).
. In the statute establishing the Commission, Congress stated that it should, inter alia, "establish sentencing policies and practices for the Federal criminal justice system that ... avoid[ ] unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.” 28U.S.C. § 991(b)(1)(B).
. For thoughtful criticism of the pre-Booker Guidelines system, see Albert W. Alschuler: The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. Chi. L.Rev. 901 (1991); Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L.Rev. 1315 (2005).
. In this Circuit, sentencing courts should observe the following steps:
"(1) Courts must continue to calculate a defendant's Guidelines sentence precisely as they would have before Booker.
(2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit's pre-Booker case law, which continues to have advisory force.
(3) Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines.”
United States v. Gunter,