United States v. Langford

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

2-22-2008

USA v. Langford

Precedential or Non-Precedential: Precedential

Docket No. 06-2774

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 06-2774

UNITED STATES OF AMERICA

v.

SHAWN LANGFORD,

Appellant

Appeal from the United States District Court

for the Western District of PA

(D.C. Criminal No. 05-cr-00151-2)

District Judge: Honorable Gary L. Lancaster

Argued November 2, 2007

Before: RENDELL, WEIS and NYGAARD, Circuit Judges.

(Filed: February 22, 2008)

Renee Pietropaolo [ARGUED]

Kimberly R. Brunson

Office of Federal Public Defender

1001 Liberty Avenue

1450 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant

Robert L. Eberhardt

Rebecca R. Haywood [ARGUED]

Office of the U.S. Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

OPINION OF THE COURT

RENDELL, Circuit Judge.

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.

2

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

the police following a chase, and confessed to the bank robbery.

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

3

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

4

conduct. The court discontinued that third adjudication and,

according to the PSR, ordered 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

total 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.

Langford timely appealed. We have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v.

5

Lloyd, 469 F.3d 319, 321 (3d Cir. 2006). We review the District

Court’s interpretation of the Sentencing Guidelines de novo.

United States v. Pojilenko, 416 F.3d 243, 246 (3d Cir. 2005).

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, as the government

argues, juvenile adjudications are not exempted from the

calculation of a defendant’s criminal history score. United

States v. Bucaro, 898 F.2d 368, 373 (3d Cir. 1990). Not all

juvenile adjudications, however, result in criminal history

points, largely because “[a]ttempting to count every juvenile

adjudication would have the potential for creating large

disparities due to the differential availability of records.”

U.S.S.G. § 4A1.2, cmt. n. 7. Therefore, for offenses committed

prior to age eighteen, the Guidelines comments limit criminal

history points to “those that resulted in adult sentences of

6

imprisonment exceeding one year and one month, or resulted in

imposition of an adult or juvenile sentence or release from

confinement on that sentence within five years of the

defendant’s commencement of the instant offense.” Id.

(emphasis added). Because the other categories of juvenile

adjudications that are to be counted are not relevant here, “the

imposition of an adult or juvenile sentence” is a prerequisite to

using Langford’s auto theft adjudication in the calculation of his

criminal history score.

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, 452

F.3d 234, 238-40 (3d Cir. 2006) (noting that while we use

federal, rather than state, law definitions and terminology, the

state proceeding and statutory scheme is relevant to determining

whether the adjudication actually resulted in a sentence as

defined by the Guideline and its commentary); accord U.S. v.

Morgan, 390 F.3d 1072, 1074 (8th Cir. 2004).

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

7

the proceeding and discharge the child from any detention or

other restriction theretofore ordered.” See id. § 6341(b). Here,

the juvenile court adjudicated Langford delinquent in

connection with the attempted auto theft offense. Thereafter,

however, it ordered that the petition be discontinued.

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.1

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

operation; it discontinued the action. Refusing to impose a

sentence is not the same as suspending a sentence. Black’s Law

1

At oral argument, the government changed tactics somewhat

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.

8

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, 452 F.3d 235, 238

(3d Cir. 2006).

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 cases 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, 195 F.3d 415 (8th Cir. 1999)

(examining a suspended sentence imposed by juvenile court);

United States v. Holland, 26 F.3d 26 (5th Cir. 1994) (same).

Lastly, the government urges us to assume that the

juvenile court discontinued Langford’s attempted auto theft

adjudication only because 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.

9

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 defendant’s criminal history under the

Guidelines.2

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 months 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

2

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.

10

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, 543

U.S. 220, 245-46 (2005). Our Court thereafter provided district

courts with a three-step process to follow in order to comply

with the Supreme Court’s ruling in Booker:

(1) Courts must continue to calculate a defendant’s

Guidelines sentence precisely as they would have before

11

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.

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006)

(quotation marks, brackets, and citations omitted); see also

United States v. Hawk Wing, 433 F.3d 622, 631 (8th Cir. 2006)

(stating that courts should calculate Guidelines ranges just as

they would have before Booker); United States v. Crosby, 397

F.3d 103, 112 (2d Cir. 2005) (“The applicable Guidelines range

is normally to be determined in the same manner as before

Booker/Fanfan.”). When a sentencing court miscalculates the

applicable range, it fails to discharge its duties under step one of

Gunter. As we made clear in United States v. Jackson, “because

the Guidelines still play an integral role in criminal sentencing,

we require that the entirety of the Guidelines calculation be done

correctly.” 467 F.3d 834, 838 n.4 (3d Cir. 2006) (citations

omitted).

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”

12

from which the sentencing court exercises its discretion under

§ 3553(a) at Gunter’s third step. United States v. Cooper, 437

F.3d 324, 331 (3d Cir. 2006). As the Supreme Court recently

confirmed in Gall v. United States, “a district court should begin

all sentencing proceedings by correctly calculating the

applicable Guidelines range. As a matter of administration and

to secure nationwide consistency, the Guidelines should be the

starting point and the initial benchmark.” 128 S. Ct. 586, 596

(2007). The Court further observed that “[t]he fact that

§3553(a) explicitly directs sentencing courts to consider the

Guidelines supports the premise that district courts must begin

their analysis with the Guidelines and remain cognizant of them

throughout the sentencing process.” Id. at 597 n.6. The failure

to correctly apply the Guidelines was specifically listed by the

Supreme Court in Gall as a “significant procedural error.” Id.

at 597. A correct calculation, therefore, is crucial to the

sentencing process and result.

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, 128 S. Ct. 558, 564

(2007) (emphasis added). As we have observed, “[b]ecause the

Guidelines reflect the collected wisdom of various institutions,

they deserve careful consideration in each case. Because they

have been produced at Congress’s direction, they cannot be

13

ignored.” United States v. Goff, 501 F.3d 250, 257 (3d Cir.

2007); accord United States v. Lalonde, 509 F.3d 750, 763 &

n.5 (6th Cir. 2007) (noting that after Gall, a court of appeals

“cannot find that a sentencing court has properly considered the

§ 3553(a) factors if it miscalculated the advisory Guidelines

range”).

The 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 compare the

defendant to others who have committed the same offense but

are in a different criminal history category. Similarly, if a

sentencing court incorrectly decides that a reckless

endangerment adjustment under U.S.S.G. § 3C1.2 applies, it

may rely on inapplicable Sentencing Commission comments as

it evaluates the § 3553(a) factors.

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,

128 S. Ct. at 564, will necessarily be skewed when it

misperceives the applicable range. Without knowing the correct

range, a district court may impose an outside-the-Guidelines

sentence without providing adequate explanation or, alternately,

may impose a sentence believed to be at one end of the range or

14

below the range, but that actually falls within the correct range.

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.” 127 S. Ct.

2456, 2468 (2007). Without a correct Guidelines range, a

sentencing court will fail to comply with the Supreme Court’s

holding that a sentencing court must properly justify a sentence

based on the record and Guidelines calculation before it. Id. at

2465-68 (reiterating the importance of the sentencing court’s

subjecting the sentence to thorough adversarial testing). As we

said in United States v. Fisher,

[i]f, after calculating the appropriate Guidelines, a

district judge finds that the imposition of a

within-Guidelines sentence 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.

502 F.3d 293, 308 (3d Cir. 2007) (citing Rita, 127 S. Ct. at

2464, 2466). Due process concerns underlie these requirements.

United States v. Ausburn, 502 F.3d 313, 322 (3d Cir. 2007)

(“[D]ue process in criminal sentencing requires that a defendant

receive notice of, and a reasonable opportunity to comment on,

(a) the alleged factual predicate for his sentence, and (b) the

15

potential punishments which may be imposed at sentence.”);

United States v. Fuller, 426 F.3d 556, 565 (2d Cir. 2005) (in

discussing the pre- and post-Booker cases, the court noted that

a district court’s failure to comply with § 3553(c)(2) denies a

defendant “‘the right to argue more effectively ... whether ... a

sentence is ‘reasonable’”).

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 ultimate 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, 467 F.3d at 838-39

(“[D]istrict courts must still calculate what the proper

Guidelines sentencing range is, otherwise the Guidelines cannot

be considered properly at Gunter’s third step.”). For, the correct

computation of the Guidelines range and any departures

therefrom “serves to clarify the basis for the sentence imposed”

and thus facilitates reasonableness review. United States v.

Floyd, 499 F.3d 308, 311 (3d Cir. 2007). In United States v. Ali,

we explained that, by relying on an incorrectly calculated

Guidelines range and an improper departure determination, a

sentencing judge “necessarily was unable meaningfully to

consider the recommended Guidelines range as required by §

3553(a)(4).” 508 F.3d 136, 154 (3d Cir. 2007). Thus, we

16

concluded, “the preliminary errors at steps one and two tainted

the step three analysis and resulting sentence.” Id. (remanding

for resentencing based on the court’s error at Gunter’s step one).

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, 407 F.3d at 1178-79; Hawk Wing, 433 F.3d

at 631 (internal quotation marks omitted); United States v.

Zeigler, 463 F.3d 814, 819 (8th Cir. 2006) (Hansen, J.,

concurring) (“Generally, if the district court errs in applying the

Guidelines at step one or fails to consider a requested departure

at step two, we cannot conduct a reasonableness review because

the district court’s critical starting point, a correctly determined

advisory Guidelines range, may be flawed.”); United States v.

Staten, 466 F.3d 708, 713 (9th Cir. 2006) (“If...‘there was

material error in the Guidelines calculation that serves as the

starting point for the district court’s sentencing decision, we will

remand for resentencing pursuant to 18 U.S.C. § 3742(f),

without reaching the question of whether the sentence as a

whole is reasonable in light of § 3553(a).’”). As the Court of

Appeals for the Eighth Circuit has stated, where “the sentence

fails the first step of our analysis [because of an incorrect

application of the Guidelines], we need not reach the second

step, a determination of whether the imposed sentence is

reasonable in light of § 3553(a).” United States v. Mashek, 406

F.3d 1012, 1020 (8th Cir. 2005); see also United States v.

Williams, 456 F.3d 1353, 1360 (11th Cir. 2006) (only if the

Guidelines calculation is correct or the error harmless can the

court go on to consider whether the sentence is reasonable);

United States v. Hernandez-Castillo, 449 F.3d 1127, 1129-30

17

(10th Cir. 2006) (same).

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, 128 S. Ct.

at 575; Gall, 128 S. Ct. at 598. Accordingly, in Gall, the Court

instructed us to “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, failing to consider the § 3553(a)

factors, selecting a sentence based on clearly erroneous facts, or

failing to adequately explain the chosen sentence-including an

explanation for any deviation from the Guidelines range” before

considering the substantive reasonableness of a sentence. Gall,

128 S. Ct. at 597. This first step, ensuring that the sentencing

court did not make a procedural error, is increasingly important

in light of the Supreme Court’s decision that “a Guidelines

sentence will usually be reasonable.” Rita, 127 S. Ct. at 2468.

In sum, while “the district court is free to make its own

reasonable application of the § 3553(a) factors, and to reject

(after due consideration) the advice of the Guidelines,”

Kimbrough, 128 S. Ct. at 577 (Scalia, J., concurring), it must

first duly consider the correct Guidelines. Thus, a district

court’s incorrect Guidelines calculation will thwart not only its

18

ability to accomplish the analysis it is to undertake, but our

reasonableness review as well.

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 circum stances,

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, 529 F.2d 278, 284 (3d Cir. 1976).

“‘High probability’ requires that the court possess a ‘sure

conviction that the error did not prejudice’ the defendant.”

United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995)

(quoting United States v. Jannotti, 729 F.2d 213, 219-20 (3d Cir.

1984)); accord United States v. Wallace, 461 F.3d 15, 44 (1st

Cir. 2006) (vacating and remanding under the plain error

standard because it “lack[ed] the ‘definite and firm conviction’

that removal of the inappropriate grounds would not be likely to

alter the district court’s view of the sentence rightfully to be

imposed”); United States v. Duckro, 466 F.3d 438, 446 (6th Cir.

19

2006) (“[w]here a district court makes a mistake in calculating

a Guidelines range for purposes of determining a sentence under

section 3553(a), we are required to remand for resentencing

‘unless we are certain that any such error was harmless-i.e. any

such error “did not affect the district court's selection of the

sentence imposed.”’”) (citations omitted). As the Supreme

Court has instructed, the proponent of the sentence bears the

burden of “persuad[ing] the court of appeals that the district

court would have imposed the same sentence absent the

erroneous factor.” Williams v. United States, 503 U.S. 193, 203

(1992). For the error to be harmless, it must be clear that the

error did not affect the district court’s selection of the sentence

imposed. Id. at 203. Accordingly, we will remand for

resentencing “unless [we] conclude on the record as a

whole...that the error did not affect the district court’s selection

of the sentence imposed.” Id.

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, 213 F.3d 409, 417-18 (7th

Cir. 2000) (finding that the sentencing court’s miscalculation of

the defendant’s criminal history category was irrelevant to the

sentence imposed because his offense level carried a life

sentence); see also United States v. Wilken, 498 F.3d 1160 (10th

Cir. 2007) (holding that the erroneous application of an

enhancement did not affect the district court’s selection of the

sentence imposed because defendant qualified as a career

20

offender and as such was subject to categorically prescribed

offense and criminal history levels); United States v. Long

Soldier, 431 F.3d 1120, 1121 (8th Cir. 2005) (“The district

court’s erroneous belief that it could not depart upward did not

deprive Long Soldier of any substantial-or even beneficial-right.

He was deprived merely of the opportunity to receive an upward

departure and, perhaps, a longer sentence. As such, any error is

harmless....”). In such cases, although an error was made, it

could not have impacted the ultimate sentence.

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.3

3

See United States v. Harris, 390 F.3d 572, 573 (8th Cir.

2004) (concluding that, based on the record from sentencing, it

was clear that the district court would have imposed the same

sentence and noting that had the overlap been at the bottom of

the overlapping area, “there might be an inference that the court

would have given [the defendant] a lower sentence if he had

21

In United States v. Knight, we made clear that we do not

agree that an overlap between ranges renders an error harmless.

266 F.3d 203 (3d Cir. 2001). In Knight, the District Court

erroneously calculated the Guidelines range as 151 to 188

months and imposed a 162-month sentence that fell within the

correct Guidelines range of 140 to 175 months. Id. at 205.

Under the exacting plain error standard, we held that

“application of an incorrect Federal Sentencing Guidelines

range presumptively affects substantial rights, even if it results

in a sentence that is also within the correct range.” Id.; see also

United States v. Wood, 486 F.3d 781, 790-91 (3d Cir. 2007)

(relying on Knight post-Booker and vacating and remanding);

United States v. Felton, 55 F.3d 861, 869 n.3 (3d Cir. 1995)

(“This circuit and others have found that the miscalculation of

a defendant’s offense level ‘certainly is error that seriously

affect[s] the defendant’s rights, and so amounts to plain error.’”)

received a [smaller] adjustment”); United States v. Rivera, 22

F.3d 430, 439 (2d Cir. 1994) (holding that where there was an

overlap in the sentence the defendant advocated and the range

used by the court (which in any case the court of appeals

believed to be correct) and the sentencing court made clear that

it would have imposed the same sentence regardless of the

range, the error was harmless); cf. United States v. Dillon, 905

F.2d 1034, 1037-38 (7th Cir. 1990) (speculating that because the

correct Guidelines range and that used overlapped, the

sentencing judge would have imposed a sentence at the high end

under the correct range because of other factors the judge had

properly considered, even though the sentence was in the middle

of the range actually used).

22

(citation omitted); United States v. Pollen, 978 F.2d 78, 90 (3d

Cir. 1992) (“The district court’s improper calculation ...,

resulting in a significantly higher Guideline sentencing range,

certainly is an error that seriously affected [defendant]’s

substantial rights and so amounts to plain error.”). We reviewed

numerous cases wherein our sister courts of appeals similarly

concluded that the selection of an incorrect Guidelines range

was plain error even though the actual sentence happened to fall

within the correct Guidelines range. Id. at 208-10. Recognizing

that some cases had been to the contrary, we decided that our

case law was more sound in that it better protects the

defendant’s right to a sentence “imposed pursuant to correctly

applied law” and “better effectuates the Guidelines’ purpose to

institute fair and uniform sentencing.” Id. at 210. We reviewed

the record and determined that “we would be unable to conclude

that it is even reasonably likely that the same sentence would

have been imposed if the correct range and history were

considered.” Id. at 208.

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. 201 F.3d 214 (3d

Cir. 1999). The government argued that remand was

unnecessary because, even if the court used the correct

Guidelines range and again departed downward six levels, the

range would be 12 to 18 months. Id. at 228. It also contended

that, irrespective of the Guidelines range, “the District Court

considered 18 months incarceration the proper sentence in

23

Thayer’s case and departed downward six levels in order to

obtain that sentence.” Id. at 230. We said that, although the

court had stated that it would not impose a sentence of

probation, it was unclear on the record that it would not again

depart six levels and impose an even lower sentence at the

bottom of the Guidelines range. Id. at 230 (stating that “the

record support for the possibility Thayer would have received a

shorter sentence but for the § 2F1.1(b)(4)(B) enhancement is

sufficient to require remand”).

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, 503 U.S. at 202. Although many of our harmless error

cases were decided in the mandatory Guidelines regime, they

point in the same direction under an advisory regime:4 we

4

This is not a novel conclusion. United States v. King, 454

F.3d 187, 196 (3d Cir. 2006) (noting that our pre-Booker case

law “continues to have advisory force”); Wood, 486 F.3d at 790-

91 (applying our pre-Booker harmless error holdings to a

sentence under the advisory Guidelines). Post-Booker, our sister

courts of appeals also have turned to their prior decisions on

harmless error for guidance. See, e.g, United States v. Robinson,

433 F.3d 31, 35 (1st Cir. 2005); United States v. Villegas, 404

F.3d 355, 361-62 (5th Cir. 2005); United States v. Mashek, 406

F.3d 1012, 1015 (8th Cir. 2005); United States v. Crawford, 407

24

cannot presume that a district court would have imposed the

same sentence, given the opportunity to consider the correctly

calculated Guideline. See Pollen, 978 F.2d at 89-90 (noting that

speculation would be inappropriate given the nature of a

sentencing court’s decision); United States v. Crawford, 407

F.3d 1174, 1183 (11th Cir. 2005) (“We cannot presume that, in

the absence of those errors, the district court would have

decided that a downward departure was warranted in calculating

an advisory guideline range.”). As the Court of Appeals for the

Tenth Circuit said, “what the district court will do upon

resentencing absent the illegal presumption ‘places us in the

zone of speculation and conjecture.’” United States v. Conlan,

500 F.3d 1167 (10th Cir. 2007) (citation omitted). An

assumption that the sentencing court would have arrived at the

same precise sentence is speculation indeed.

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. 454 F.3d 149 (3d Cir. 2006). There, after

calculating an advisory Guidelines range of 70 to 87 months’

imprisonment, the district court sentenced Flores to 32 months’

imprisonment without granting a formal departure. Id. at 162.

On appeal, we concluded that the Guidelines range made no

F.3d 1174 (11th Cir. 2005).

25

difference: the “District Court clearly considered all the factors

in 18 U.S.C. § 3553(a) in reaching its sentence and used its

discretion in light of these factors, rather than in the application

of a specific downward departure, to go below his advisory

Guidelines range to identify the appropriate sentence for

Flores.” Id. Thus, the sentencing court could not be said to

have imposed the sentence “as a result” of any alleged errors in

the calculation of the Guideline.

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, 492

F.3d 967, 971 (8th Cir. 2007) (“[T]he record must clearly show

not only that the district court intended to provide an alternative

sentence, but also that the alternative sentence was based on an

identifiable, correctly calculated guidelines range.”); United

States v. Funk, 477 F.3d 421, 430 (6th Cir. 2006) (“If we were

to view Funk’s sentence simply as a sentence where ‘the district

court independently [chose] to deviate from the advisory

guidelines range,’ we would still need to determine whether the

district court adequately justified the extent of this deviation.”)

(citation omitted). Sentencing in the post-Booker era is a

process, not a mere affixing of a point within a mandated range

as was previously the case.

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

26

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 outset, 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 Guideline range to be significant,

noting that such errors thwart our reasonableness review and

including all such errors in its listing of “significant” procedural

errors. Gall, 128 S. Ct. at 597. Moreover, there is no legal test

for “insignificance.” Instead, harmlessness is the appropriate

barometer and here it cannot be met.

V. APPLICATION OF THE A NALY SIS 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.

27

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, 201 F.3d 214;

United States v. Duckro, 466 F.3d 438 (6th Cir. 2006) (holding

that, even where the district court departed downward

significantly from the originally (incorrectly) calculated range,

one could not presume that the court would have departed less

under a correct and lower Guidelines range).5 We are not

5

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, 466 F.3d at 447 (finding

28

persuaded that the record is clear that the sentence imposed was

not a result of the erroneous sentencing Guidelines range.

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, 463 U.S. 277, 290 n.16 (1983) (“[I]t is not the role of an

appellate court to substitute its judgment for that of the

sentencing court as to the appropriateness of a particular

sentence.”).6

that, because the sentencing court had selected from the low end

of the Guidelines range it believed to be correct, “it stands to

reason that it might choose an even lower sentence when

presented with” a lower range); Harris, 390 F.3d at 573

(suggesting that the proper inference to draw from a sentence

imposed at the bottom of the overlapping area might be that the

court would have imposed a lower sentence under a correct

Guidelines calculation).

6

Langford further contends that because his uncle and co-

defendant 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 total of 141 months. Langford

suggests that in order to avoid disparity in sentencing, given

Collier’s career offender status, age, and role in the offense, the

Court will likely depart downward for his sentence as well. We

will not speculate as to any downward departures the Court may

29

The goals of uniformity and sentencing discretion are

furthered by a remand. Where we conclude that the District

Court might have ended up with a different sentence had it

started at the right point, giving the Court the opportunity to

reconsider the sentence and start at the right place in

resentencing actually affords deference and respect for the

District Court judge. Our failure to do so would be

presumptuous on our part; it is not our role to say that the

sentencing judge would consider the sentence he gave, which

was at the low end of the incorrectly calculated range, to be

appropriate when the correct Guideline range is lower than was

assumed. Moreover, insisting on a uniform point of departure

from which all sentencing courts can exercise their discretion

promotes uniformity in the sentencing of defendants with similar

criminal history and offense levels. Surely, a remand with

opportunity for reasoning anew is required in order to further

both goals.

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

or may not make, but note that the Court may, but is not required

to, take the disparity into account in resentencing Langford. See

United States v. Parker, 462 F.3d 273, 276-78 (3d Cir. 2006).

30

greater than necessary to meet the purposes of sentencing.7

Because Langford was sentenced as a result of an incorrect

application of the Guidelines, the sentence fails the first step of

our Gunter analysis and, therefore, we need not reach the third

step of determining whether the sentence is reasonable in light

of the § 3553(a) factors. See Mashek, 406 F.3d at 1020.

VII. CONCLUSION

For the foregoing reasons, we will vacate Langford’s

sentence and remand to the District Court for resentencing.

7

As to these contentions, it is clear that a district court should

not give presumptive weight to the Guidelines, Gall, 128 S. Ct.

at 597, and “may determine...that, in the particular case, a

within-Guidelines sentence is ‘greater than necessary’ to serve

the objectives of sentencing.” Kimbrough, 128 S Ct. at 564.

31

WEIS, Circuit Judge, 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. § 4A.2(a).

The resulting addition of a point to the defendant’s criminal

history modified his category from III to IV, 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, 467 F.3d 834 (3d

Cir. 2006), that some errors in Guidelines calculations “can be

harmless, as the sentence imposed after a district court exercises

its discretion in step three . . . is subject to our reasonableness

review.” Id. at 839 n.6.

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, 488 U.S. 361, 363-65

(1989) (“[U]nder the indeterminate-sentence system, Congress

defined the maximum, [and] the judge imposed a sentence

within the statutory range (which he usually could replace with

probation) . . . .”).

“[W]idespread dissatisfaction with the uncertainties and

the disparities” in sentencing led to drastic alterations in this

32

system through the Sentencing Reform Act of 1984.8 Id. at 366.

The Act created the United States Sentencing Commission and

directed it to promulgate Guidelines establishing narrow ranges

of determinate sentences for categories of offenses and

defendants. 28 U.S.C. §§ 991, 994. Congress provided a list of

factors that the sentencing court should consider when

determining the point within the new Guidelines range at which

the sentence should be imposed. 18 U.S.C. § 3553(a).

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 imposed 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, 543 U.S. 220 (2005). In that case, the Supreme Court

held that the mandatory nature of the Guidelines violated the

Sixth Amendment by requiring judges in certain situations to

impose an enhanced sentence based on facts not found by a jury.

Id. at 244.

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. The Court left the remainder

of § 3553 intact, reasoning that such an arrangement best

preserved Congress’ intent to promote increased uniformity

while preserving flexibility for individualized sentencing. Id. at

263-65. As a result, sentencing courts were no longer bound to

8

Pub. L. No. 98-473, 98 Stat. 1987 (1984).

33

impose the penalty at a set point within a fixed range, but were

required to “take account of the Guidelines” along with the other

sentencing factors listed in § 3553(a). Id. at 259-60. Second,

the Court severed an appellate review provision that depended

on the mandatory nature of the Guidelines, 18 U.S.C. § 3742(e),

and in its stead directed appellate courts to review sentences for

reasonableness based on the trial court’s application of the §

3553(a) factors. Id. at 261-62.

II.

The Guidelines are intended to bring uniformity in

sentencing, an important goal for criminal justice. The

Commission had attempted to ensure that offenders with similar

circumstances receive similar sentences. 9 Although there is

merit to the concept of national uniformity, the Sentencing

Commission’s “one-size-fits-all” approach led to a mechanical

sentencing regime that created its own disparities and

injustices.10

The Booker line of cases is in tension with the concept of

2. 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.” 28 U.S.C. § 991(b)(1)(B).

3. 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).

34

national uniformity. See Kimbrough v. United States, 128 S. Ct.

558, 574 (2007) (“[O]ur opinion in Booker recognized that some

departures from uniformity were a necessary cost of the remedy

we adopted.”). In declaring the Guidelines advisory, rather than

mandatory, the Supreme Court restored much of the discretion

district courts previously possessed.

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, 128 S. Ct. 586,

596 (2007), because “in the ordinary case, the Commission's

recommendation of a sentencing range will ‘reflect a rough

approximation of sentences that might achieve § 3553(a)'s

objectives.’” Kimbrough, 128 S. Ct. at 574 (quoting Rita v. United

States, 127 S. Ct. 2456, 2465 (2007)). The Court also explained

that “[t]he fact that § 3553(a) explicitly directs sentencing courts

to consider the Guidelines supports the premise that district courts

must begin their analysis with the Guidelines and remain

cognizant of them throughout the sentencing process.” Gall, 128

S. Ct. at 597 n.6.

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, 127 S. Ct. at 2474

(Stevens, J., concurring), by reemphasizing their advisory nature

as well as the broad discretion granted sentencing courts under §

3553(a). See, e.g., Kimbrough, 128 S. Ct. at 564 (“A district

judge must include the Guidelines range in the array of factors

warranting consideration. . . . [but] may determine, however, that,

in the particular case, a within-Guidelines sentence is ‘greater than

35

necessary’ to serve the objectives of sentencing.” (quoting 18

U.S.C. 3553(a))).

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, 128 S. Ct. at 596-97 (internal

citation omitted); see also Kimbrough, 128 S. Ct. at 564 (the

Guidelines only “serve as one factor among several courts must

consider in determining an appropriate sentence.”).11

The Supreme Court’s emphasis shows that the Guidelines

should not be granted presumptive weight over the “array of

factors,” Kimbrough, 128 S. Ct. at 564, considered in the §

4. 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, 462 F.3d 237, 247 (3d Cir. 2006)

(internal citations, brackets, and quotation marks omitted).

36

3553(a) analysis. After Booker, the primary purpose of the

Guidelines calculation is to provide the sentencing court with a

“benchmark” or center of reasonableness on which to base the §

3553(a) analysis. The sentencing judge is not bound to remain

within the “rough approximation” provided by the Guidelines

range, but may sentence a defendant based on the other § 3553(a)

factors at a point anywhere within a zone of reasonableness

surrounding the benchmark provided by the Guidelines range. As

we said in United States v. Jimenez, No. 05-4098, 2008 WL

115206 (3d Cir. Jan. 14, 2008), “[r]easonableness is a range, and

our job is to ensure that the district court properly exercised its

discretion by imposing a sentence within the range of

reasonableness that is logically based upon, and consistent with,

the § 3553(a) factors.” Id. at *22.

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

37

improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, [or] failing to consider the § 3553(a)

factors.” Gall, 128 S. Ct. at 597 (emphasis added). Then they

must give due deference to the sentencing judge’s determination

under § 3553(a) of the final point at which to impose the sentence.

Id. at 597; see also Rita, 127 S. Ct. at 2469 (“The sentencing judge

has access to, and greater familiarity with, the individual case and

the individual defendant before him than the Commission or the

appeals court.”).

Rita, Gall, and Kimbrough show that appellate review

hinges on the reasonableness of the ultimate sentence as based on

the total § 3553(a) analysis, rather than on the calculation of the

Guidelines range. The reasonableness of a sentence will not be

vitiated by an “insignificant” error in the Guidelines calculation.

The Guidelines computation should be performed carefully, but

it is designed to produce a range – not a designated point.

Consequently, the Guidelines calculation need not be as precise as

an engineering drawing.

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 determining the

Guidelines range, the doctrines of plain error or harmless error can

apply to preserve the sentence imposed. See Jimenez, 2008 WL

115206, *16 (citing United States v. Grier, 475 F.3d 556, 570 (3d

Cir. 2007)); see also Booker, 543 U.S. at 268 (stating that

appellate courts reviewing sentences should “apply ordinary

prudential doctrines” such as waiver, plain error, and harmless

error).

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

38

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, 128 S. Ct. at

597, but that justification can be supplied by the strength of the

reasoning in the court’s discussion of the § 3553(a) factors. In its

final ruling, the District Court’s proper use of all the § 3553

factors to reach the ultimate sentence can make insignificant its

errors in the Guidelines calculation.

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,

127 S. Ct. at 2463 (noting that a judge’s choice of a sentence

within the Guidelines range means that his judgment accords with

that of the Sentencing Commission and “increases the likelihood

that the sentence is a reasonable one.”); see also United States v.

Cooper, 437 F.3d. 324, 332 (3d Cir. 2006) (“A sentence that falls

within the guidelines range is more likely to be reasonable than

one outside the guidelines range.”).

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. Kimbrough, 128 S. Ct. at 570. Because the District

Court conducted a thorough analysis of the § 3553(a) factors and

evaluated the characteristics applicable to the defendant and his

offense, the erroneous Guidelines calculation did not significantly

infect the final sentencing determination. The final 46-month

sentence, therefore, easily satisfies a reasonableness review.

Accordingly, I would affirm the judgment of the District

Court.

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