United States v. Marlin Hawk Wing ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-2263
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Marlin Hawk Wing, *
*
Appellant. *
___________
Submitted: September 15, 2005
Filed: January 6, 2006
___________
Before LOKEN, Chief Judge, BYE and SMITH, Circuit Judges.
___________
SMITH, Circuit Judge.
Marlin Hawk Wing pleaded guilty to larceny in violation of 18 U.S.C. §§ 661and 1153. The district court1 sentenced Hawk Wing to 18 months in prison, 2 years
of supervised release, $1,747.36 in restitution, and a $100 assessment to the Victims'
Assistance Fund. For the reasons discussed below, we affirm.
1
The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
I. Background
Hawk Wing pleaded guilty to stealing construction equipment from the Oglala
Sioux Tribal Authority. After his plea, a presentence report ("PSR") was prepared that
assigned Hawk Wing six criminal history points based upon five prior offenses.2
Although the PSR recommended no "Chapter Four Enhancements," the "Aggravating
and/or Mitigating Circumstances," section stated that "[t]he defendant has an
extensive criminal history for which no criminal history points were assigned." Hawk
Wing accepted responsibility resulting in an adjusted offense level of four. Hawk
Wing's Guidelines range calculation was zero to six months. Pending sentencing,
Hawk Wing was incarcerated at the Pennington and Meade County jails. Hawk Wing
committed two rule infractions during his time at those facilities.
At sentencing, the government, consistent with the plea agreement,
recommended that the district court reduce Hawk Wing's offense level by two levels
and that the district court sentence him at the low end of the appropriate Guidelines
range. The district court, however, denied Hawk Wing the two-level downward
adjustment for acceptance of responsibility based on his two rule infractions at the
Pennington and Meade County jails. The district court then proceeded to consider the
adequacy of Hawk Wing's criminal history and the 18 U.S.C. § 3553(a) factors.
The district court determined that Hawk Wing's criminal history score did not
adequately reflect his record because the PSR did not assign any criminal history
points for Hawk Wing's juvenile adjudications, seven additional adult criminal
convictions, and "other criminal conduct." "Other criminal conduct" included Hawk
Wing's arrest for having an open container for which he pleaded guilty; his arrest for
consuming alcohol in a public place for which he pleaded guilty; his four active
2
The five convictions for which Hawk Wing received criminal history points
were: carrying a concealed weapon, attempted burglary, two convictions for petty
theft, and possession of marijuana.
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warrants for failing to appear stemming from three arrests; his arrest for tampering
with a motor vehicle for which court information is unknown; and his arrest for third-
degree burglary for which the charge against him was later dismissed. Based on Hawk
Wing's conduct for which the PSR assigned no criminal history points, the district
court increased his criminal history points from six to seven, which placed him in a
Category IV and correlated to a sentence of six to twelve months of incarceration.
The district court then addressed whether an upward departure would be
reasonable. The district court stated, "[w]hile the Court recognizes that the guidelines
are not mandatory, the Court addresses the issue of a departure upward which would
be evaluated from the standpoint of reasonableness." The district court recognized
that United States v. Haack, 403 F.3d 997 (8th Cir. 2005), outlines the procedure
district courts should follow in determining a proper sentence. Applying the
procedure in Haack, the district court considered the § 3553(a) factors, stating its
basis for its upward departure as follows:
The Court, in determining the particular sentence to be imposed shall
consider, one, the nature and circumstances of the offense and the
history and characteristics of the defendant. In that connection, the Court
notes that the charge, which in this case was larceny, involved
essentially the theft of various tools and personal property, not high in
value but approximately $1,700 in value. The Court has set forth
specifically the history and characteristics of this defendant and that
history and characteristic[s] speak for itself.
In considering the need for the sentence imposed under [§] 3553(a)(2),
the Court considers the seriousness of the offense to promote respect for
the law and to provide just punishment for the offense, to afford
adequate deterrence to criminal conduct. The Court is of the abiding
feeling that the defendant, by reason of his past history, cannot be
deterred from further criminal conduct. By the defendant's own
admission he is an alcoholic and incarceration is reflected by the Court's
sentence and will assist with providing him with needed education or
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vocational training, medical care, or other corrections treatment in the
most effective manner.
The district court then sentenced Hawk Wing to a "non-guideline" sentence of 18
months' imprisonment. Hawk Wing filed a timely notice of appeal.
II. Analysis
Hawk Wing raises five arguments on appeal: (1) that the district court failed
to provide him with reasonable notice of the upward departure; (2) that the district
court erroneously relied on Hawk Wing's prior arrests in determining whether to
depart upwards; (3) that the district court utilized incarceration to provide
rehabilitative services; (4) that the district court's finding that Hawk Wing's criminal
history required placement in a criminal history Category IV rather than a Category
III precluded any further upward departure based upon the inadequacy of his criminal
history; and (5) that the district court failed to impose a reasonable sentence.
A. Notice of Departure
Hawk Wing first argues that the district court failed to give the parties
reasonable advance notice of its intention to depart from the Sentencing Guidelines
pursuant to Federal Rules of Criminal Procedure 32(h).3 Hawk Wing supports his
contention based on the PSR's failure to explicitly recommend a departure or identify
any Guidelines provision for a departure and specifically concluded there were no
"Chapter Four Enhancements." In response, the government asserts that the district
3
Rule 32(h) of the Federal Rules of Criminal Procedure states the following:
Before the court may depart from the applicable sentencing range on a
ground not identified for departure either in the presentence report or in
a party's prehearing submission, the court must give the parties
reasonable notice that it is contemplating such a departure. The notice
must specify any ground on which the court is contemplating a
departure.
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court gave Hawk Wing reasonable notice of departure because the PSR stated, under
the heading "Aggravating or Mitigating Circumstances," that "the defendant has an
extensive criminal history for which no criminal history points were assigned."
Because Hawk Wing failed to raise his lack of notice argument during the sentencing
hearing, we must review the adequacy of notice issue for plain error. United States
v. Sample, 213 F.3d 1029, 1031 (8th Cir. 2000).
A district court must give notice to the parties of its intent to make a sua sponte
departure from the Sentencing Guidelines. Burns v. United States, 501 U.S. 129(1991). In Burns, the PSR specifically stated that there were "no factors that would
warrant a departure from the guideline sentence." Id. at 131. Nevertheless, the district
court announced at the end of sentencing that it was departing from the Sentencing
Guidelines range without previously giving the parties advance notice of its intent to
depart. Id. In reversing the court of appeal's affirmance of the district court's
departure, the Court held that Rule 32 required that the district court "give the parties
reasonable notice that it is contemplating [a departure]" before it can "depart upward
on a ground not identified as a ground for upward departure either in the
presentence report or in a prehearing submission by the Government." Id. at 138–39
(emphasis added).
In cases following Burns, we have addressed when the district court must
provide formal notice to the parties of its intent to depart upward. In United States v.
Andrews, 948 F.2d 448 (8th Cir. 1991), the PSR "identified two factors that might
warrant an upward departure." Id. at 449. Recognizing that the PSR "expressly noted
the presence of factors which might warrant departure," this court held that the
district court did not have to give formal notice of its intent to depart. Id. In addition
to Andrews, this court has found that grounds for a departure existed where the PSR
included a section entitled "Factors That May Warrant Departure," which listed
specific factors that could justify an upward departure. United States v. Beatty, 9 F.3d
686, 688 (8th Cir. 1993). Similarly, when a PSR indicates that the defendant's
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convictions could support an upward departure, this court has held that "[n]o other
form of notice is required if the grounds for an upward departure are identified in the
PSR." United States v. Drapeau, 110 F.3d 618 (8th Cir. 1997); see also Sample, 213
F.3d at 1029 (involving a PSR that indicated an upward departure may be warranted).
Thus, when notice of departure is "sufficiently provided" in the PSR, the
district court is not required to give the parties notice of upward departure. United
States v. Hill, 951 F.2d 867, 867 (8th Cir. 1991). Even if the PSR does not
affirmatively recommend an upward departure, if it includes "specific grounds that
may form the basis for an upward departure," then Rule 32's notice requirement is
satisfied. Sample, 213 F.3d at 1031–32 (holding that because the "district court's
departure decision directly correlate[d] with the PSIR's plain language," the defendant
received adequate notice). Only when the "ground for upward departure is not
identified in 'the presentence report or in a prehearing submission by the
government'" must the district court itself provide advance notice. Id. (quoting Burns,
501 U.S. at 138). When the district court is required to give notice, it must give such
notice before the sentencing hearing. United States v. LeCompte, 99 F.3d 274, 280
(8th Cir. 1996).
In contrast to the preceding cases, we have held that where a PSR "explicitly
stated" that there were no factors warranting an upward departure, the defendant
failed to receive proper notice. United States v. Johnson, 121 F.3d 1141, 1145 (8th
Cir. 1997). In Johnson, because the PSR did not give the defendant proper notice of
the potential upward departure, the district court itself should have provided the
defendant with notice that it was considering departure. Id.In this case, neither party disputes that the district court itself did not provide
advance notice of its intent to depart from the Guidelines to the parties; therefore, the
issue is whether the PSR put Hawk Wing on notice that the district court might
consider an upward departure. Unlike the PSR in Burns and Johnson, Hawk Wing's
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PSR did not expressly state that no factors existed to warrant a departure. While the
PSR did not affirmatively recommend an upward departure like the PSR in Andrews
and Beatty, it did include a section entitled "Aggravating and Mitigating
Circumstances," which informed Hawk Wing that he had an extensive criminal
history for which the PSR assigned no criminal history points. Because the PSR
included a specific ground that could form the basis for an upward departure—a
criminal history for which no criminal history points were assigned—the notice
requirement of Rule 32 was satisfied.
B. Prior Arrests
Hawk Wing also challenges the district court's reliance, in part, on prior arrests
in determining whether to depart upwards. The government responds that even
without considering the prior arrests, the district court had ample information before
it to justify the upward departure.
A district court is prohibited from considering a prior arrest record itself "for
purposes of an upward departure." U.S.S.G. § 4A1.3(a)(3); United States v.
Cammisano, 917 F.2d 1057, 1063 (8th Cir. 1990). However, § 4A1.3(a)(1) of the
United States Sentencing Guidelines provides that "[i]f reliable information indicates
that the defendant's criminal history category substantially under-represents the
seriousness of the defendant's criminal history or the likelihood that the defendant
will commit other crimes, an upward departure may be warranted." Thus, a sentencing
court may consider prior similar adult criminal conduct not resulting in conviction;
prior similar civilly-adjudicated misconduct; and prior sentences, but, a prior arrest
record standing alone cannot be considered. United States v. Joshua, 40 F.3d 948,
952–53 (8th Cir. 1994).
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When the PSR includes the defendant's arrest record, we and other circuits4
have held that the PSR must also provide specific facts underlying the arrests in order
for the arrest record to justify an upward departure; otherwise, the district court may
not rely on a mere record of arrest. Id. at 953 (holding that because the district court
considered a record of arrest when it departed, the case must be remanded for
reconsideration of the sentence). In United States v. Morse, 983 F.2d 851, 854 (8th
Cir. 1993), the district court departed upward from the Guidelines based on "previous
convictions not counted in Morse's score, pending charges, and the failure of the
previous sentences to deter Morse." With regard to the district court's consideration
of the previous convictions that were not counted in Morse's criminal history score,
we concluded that such reliance on the previous convictions was not error. Id. at 854.
In addressing the district court's reliance on Morse's pending charges in imposing an
upward departure, this court noted that "[o]ther circuits have recognized that courts
may consider pending charges or uncharged conduct in its determination of a
defendant's accurate criminal history." Id. This court explained, however, that "[e]ven
without considering the two pending charges against Morse, the district court had
adequate grounds to depart under § 4A1.3." Id. Thus, the court concluded that while
4
United States v. Dixon, 318 F.3d 585, 591 (4th Cir. 2003) (holding that the
facts provided in the PSR—which the defendant failed to contest—went beyond a
mere record of arrest so as to not violate § 4A1.3(a)(3)); United States v. Hernandez,
160 F.3d 661, 670 (11th Cir. 1998) (holding that because the PSR failed to recount
the facts underlying the dismissed counts, the court abused its discretion by imposing
an upward departure "based on a mere list of arrests"); United States v. Ruffin, 997
F.2d 343, 346 (7th Cir.1993) (holding that the district court could not rely on a PSR
in imposing an upward departure because while the report described the charges, it
was silent as to the facts underlying the charges); United States v. Williams, 989 F.2d
1137, 1142 (11th Cir. 1993) (stating that the PSR was "far more in depth than mere
arrest records" because it provided a summary of the facts surrounding the arrests);
United States v. Cantu-Dominguez, 898 F.2d 968, 971 (5th Cir. 1990) (stating that
when a court is left with nothing but an arrest record that did not result in convictions,
such information is not "reliable information" that justifies an upward departure).
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"unproven charges are not a solid basis for enhancement . . . such unproven charges
are, under the circumstances of this case, including the defendant's background, more
than ample to warrant the departure taken." Id. at 854–55.
We hold the district court did not err in considering Hawk Wing's guilty pleas.
Just as the district court in Morse could properly rely on previous convictions not
counted in the defendant's criminal history score, so too could the district court in this
case rely on prior charges for which Hawk Wing pleaded guilty. Because Hawk Wing
failed to object to the inclusion of the guilty pleas in the PSR, we deem those facts
admitted. United States v. Paz, 411 F.3d 906, 909 (8th Cir. 2005).
However, the district court could not properly rely on the four active warrants
against Hawk Wing stemming from four prior arrests because the PSR did not set
forth the factual details underlying the charges. Therefore, under Morse, we must
determine whether the district court would have imposed the same sentence had it not
relied upon the pending charges. Unlike the district court in Joshua, the district court
did not solely rely on Hawk Wing's prior arrests in departing upward; instead, it also
cited Hawk Wing's juvenile adjudications and seven additional adult convictions to
justify the upward departure. Thus, we conclude that the district court had adequate
grounds to depart upward despite its error in considering the prior arrests for which
the PSR did not set forth the factual details.
C. Improper Incarceration
Hawk Wing also argues that the district court's statement that "incarceration
will provide [Hawk Wing] with needed educational and vocational training, medical
care, and other correctional treatment in the most effective manner" was directly
contrary to the statutory prohibition against using imprisonment to promote
rehabilitation as set forth in 18 U.S.C. § 3582 and 28 U.S.C. § 944(k). We disagree.
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When determining the appropriate term of imprisonment, courts should
recognize that "imprisonment is not an appropriate means of promoting correction
and rehabilitation." 18 U.S.C. § 3582. Thus, Congress required the Federal
Sentencing Commission to "insure that the guidelines reflect the inappropriateness
of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the
defendant or providing the defendant with needed educational or vocational training,
medical care, or other correctional treatment." 28 U.S.C. § 994(k). Because of the
prohibitive language in § 3852 and § 994(k), "other circuits have recognized
. . . when imposing an original sentence to a term of imprisonment, it is inappropriate
for the district court to consider rehabilitation of the defendant as the sole purpose for
imprisonment." United States v. Tsosie, 376 F.3d 1210, 1214 (10th Cir. 2004) (citing
United States v. Brown, 224 F.3d 1237, 1240 (11th Cir. 2000)); United States v.
Jackson, 70 F.3d 847, 879 (6th Cir. 1995).5
While the district court must acknowledge that imprisonment is not an
appropriate means to promote rehabilitation, it must consider, for sentencing
purposes, the need for the sentence imposed to provide the defendant "with needed
educational or vocational training, medical care, or other correctional treatment in the
most effective manner." United States v. Jasper, 338 F.3d 865, 867 (8th Cir. 2003)
(comparing § 3852(a) with § 3553(a)(2)); United States v. Holmes, 283 F.3d 966, 968
(8th Cir. 2002) (comparing § 3852(a) with § 3553(a)(2)). See also United States v.
Hardy, 101 F.3d 1210, 1212–13 (7th Cir. 1996) (stating that when a district judge is
sentencing a defendant within the Guidelines range, it is instructed by §
5
The Seventh and Ninth Circuits have recognized that 28 U.S.C. § 994(k) is
only directed to the Federal Sentencing Commission, not the district courts.
Therefore, when reviewing a claim that the district court improperly considered
rehabilitation and correction in determining a defendant's sentence, an appellate court
should review the district court's conduct under § 3582. United States v. Hardy, 101
F.3d 1210, 1212–13 (7th Cir. 1996); United States v. Duran, 37 F.3d 557, 561 (9th
Cir. 1994).
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3553(a)(2)(D) to consider educational, medical, and other correctional needs); United
States v. Anderson, 15 F.3d 278, 281 (2d Cir. 1994) (stating that § 3582(a) refers
district courts to factors set forth in § 3553(a)(2)(D)).
The Sixth Circuit explained the interplay between § 3852(a) and §
3553(a)(2)(D) as follows:
For purposes of initial sentencing, a court may not consider
rehabilitative goals in considering whether to impose a sentence of
imprisonment. However, it may consider rehabilitative goals in
determining whether to sentence a defendant within a particular
guideline range.
Although it is difficult to see a distinction between the imposition of a
sentence of imprisonment and the length of imprisonment, the statutory
scheme does suggest that rehabilitative needs are relevant to the
determination of the length of a sentence.
Jackson, 70 F.3d at 879–80, 880 n.6 (emphasis added) (internal citations omitted).
Thus, after the district court chooses imprisonment as a proper punishment, it is not
prohibited under § 3582 from considering correction and rehabilitation in determining
the length of the imprisonment. Duran, 37 F.3d at 561 n.3.6
We conclude the district court did not improperly consider rehabilitative goals
in violation § 3852. Neither the parties nor the district court ever discussed the
possibility of Hawk Wing receiving probation instead of a term of imprisonment.
6
The Second Circuit explained that while Congress wanted to assure that
defendants were not incarcerated in order to put them in a place "where it was hoped
that rehabilitation would occur," Congress "expressed no hostility to rehabilitation
as an objective of sentencing." United States v. Maier, 975 F.2d 944, 946–47 (2d Cir.
1992) (emphasis in original); see also United States v. Harris, 990 F.2d 594, 596
(11th Cir. 1993) (quoting Maier, 975 F.2d at 946–47).
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Instead, the district court had already determined that Hawk Wing's placement in a
criminal history Category IV subjected him to a range of six to twelve months of
incarceration. Only after determining that Hawk Wing would receive a sentence of
imprisonment did the district court consider the § 3553(a)(2)(D) factor of
rehabilitation in deciding the appropriate length of the sentence. At sentencing, the
district court directly quoted § 3553(a)(2)(D) in explaining its reasons for an upward
departure. Because the district court considered § 3553(a)(2)(D) in determining the
length of the sentence of incarceration rather than whether to incarcerate, we find no
error.
D. Criminal History
Lastly, Hawk Wing argues that because the district court established his
criminal history category at Category IV instead of Category III, it was precluded
from any further upward departure based upon an inadequacy of criminal history. In
addition, Hawk Wing argues that the district court's sentence is unreasonable under
the 18 U.S.C. § 3553(a) factors.
Section 4A1.3(a)(1) of the United States Sentencing Guidelines provides that
"[i]f reliable information indicates that the defendant's criminal history category
substantially under-represents the seriousness of the defendant's criminal history or
the likelihood that the defendant will commit other crimes, an upward departure may
be warranted." When imposing an upward departure under § 4A1.3(a)(1), the
sentencing court "first must proceed along the criminal history axis of the sentencing
matrix, comparing the defendant's criminal history with the criminal histories of other
offenders in each higher category." LeCompte, 99 F.3d at 280 (citing United States
v. Day, 998 F.2d 622, 625 (8th Cir.1993)). If the court arrives at Category VI, the
highest criminal history category, and determines that the sentencing range remains
inadequate, then it "may impose a reasonable sentence above the Category VI range."
Id. (citing Day, 998 F.2d at 625). While the sentencing court does not have to
mechanically discuss each criminal history category it rejects, the court must
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adequately explain and support the upward departure. Id. (citing Day, 998 F.2d at
625); United States v. Thornberg, 326 F.3d 1023, 1027 (8th Cir. 2003) (citing United
States v. Collins, 104 F.3d 143, 145 (8th Cir. 1997)).
Since United States v. Booker, ___U.S.___, 125 S. Ct. 739, 757 (2005), which
declared the Federal Sentencing Guidelines to be advisory, our circuit has urged
district courts to follow a three-step sentencing approach. Haack, 403 F.3d at 1002
(citing United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005)). First, the
sentencing court must "determine the appropriate guidelines sentencing range, since
that range does remain an important factor to be considered in the imposition of a
sentence." Id. at 1003. When determining the appropriate sentencing range, the
district court should identify potential sentencing ranges, the reason why the court is
not choosing a specific range, and other § 3553(a) factors. Id. The district court
should not "determine the sentence in any manner other than the way the sentence
would have been determined pre-Booker." Id. Second, after determining the
appropriate sentencing range, the district court must decide if a "traditional departure"
is appropriate under Part K or § 4A1.3. Id. at 1003. Finally, after the district court
determines the Guidelines sentence, it must consider "all other factors in § 3553(a)
to determine whether to impose the sentence under the guidelines or a non-guidelines
sentence." Id. When a court of appeals reviews a district court's sentencing
determination for reasonableness, "the correct guidelines range is still 'the critical
starting point for the imposition of a sentence.'" United States v. Hadash, 408 F.3d
1080, 1082 (8th Cir. 2005) (citing United States v. Mashek, 406 F.3d 1012(8th Cir.
2005)).
If the parties do not dispute the applicable Sentencing Guidelines range, then
the appellate court must determine "whether the sentence imposed is a reasonable
'guidelines sentence' and, if not, whether there are other factors under § 3553(a) that
would make the sentence reasonable." Id. "Reasonableness as a constraint on a
district court's discretion to depart . . . infers a limited range of choice." Id. at 1004.
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A district court's discretionary sentencing determination may be unreasonable if it
does not consider "a relevant factor that should have received significant weight,
gives significant weight to an improper or irrelevant factor, or considers only
appropriate factors but nevertheless commits a clear error of judgment by arriving at
a sentence outside the limited range of choice dictated by the facts of the case." Id.
Thus, an appellate court must determine "whether the sentence, as imposed, is a
reasonable 'non-guidelines sentence' applying the . . . § 3553(a) factors." Id. at 1006.
Here, Hawk Wing's argument is not that the district court's criminal history
increase from a Category III to a Category IV violated LeCompte. Instead, Hawk
Wing asserts that once the district court placed him in a Category IV with a
sentencing range of 6 to 12 months, it could not impose an even higher eighteen-
month "non-guideline" sentence because it did not examine whether a sentence under
Category V or Category VI would be appropriate. Hawk Wing, however, ignores the
three-step approach to determining a sentence that this court set forth in Haack. Hawk
Wing fails to assert that the district court selected an inappropriate Guidelines
sentencing range or misapplied "traditional departure" rules to arrive at a Guidelines
sentence of 6 to 12 months under Category IV.
Because Hawk Wing only challenges what the district court referred to as a
"non-guideline sentence" of 18 months, this court must determine whether the "non-
guideline" sentence was reasonable in light of the § 3553(a) factors. The district
court, in calculating Hawk Wing's sentence, followed our procedure in Haack by
considering the § 3553(a) factors. First, the district court considered "the nature and
circumstances of the offense and the history and characteristics of the defendant"
under § 3553(a)(1) by "not[ing] that the charge . . . involved essentially the theft of
various tools and personal property, not high in value but approximately $1,700 in
value." In addition, the district court stated that it "has set forth specifically the
history and characteristics of [Hawk Wing] and that history and characteristic[s]
speak for itself." Second, the district court considered the need for the defendant's
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sentence to "reflect the seriousness of the offense, promote respect for the law, and
to provide just punishment for the offense" under § 3553(a)(2)(A) and the need for
the sentence "to afford adequate deterrence to criminal conduct" under §
3553(a)(2)(B). The district court was "of the abiding feeling that the defendant, by
reason of his past history, cannot be deterred from further criminal conduct." Finally,
the district court considered whether the sentence imposed would "provide the
defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner" under § 3553(a)(2)(D).
Regarding this factor, the district court stated, "[b]y the defendant's own admission
he is an alcoholic and incarceration is reflected by the Court's sentence and will assist
with providing him with needed education or vocational training, medical care, or
other corrections treatment in the most effective manner."
Based on the district court's thorough analysis of the § 3553(a) factors in
determining Hawk Wing's sentence and our review of that analysis, we cannot say
that the sentence imposed is unreasonable. Accordingly, we affirm the judgment of
the district court.
LOKEN, Chief Judge, concurring.
I concur but write separately to note my partial disagreement with the court’s
analysis of guidelines departure issues after United States v. Booker, 125 S. Ct. 738(2005). In Booker, the Supreme Court’s remedial opinion stripped the guidelines of
their mandatory effect but held that federal sentencing courts must still “consult [the]
Guidelines and take them into account when sentencing.” 125 S. Ct. at 767. The
Court also left intact 18 U.S.C. § 3742(f)(1), which provides that an appellate court
“shall remand the case for further sentencing proceedings” if it determines that a
sentence was “imposed as a result of an incorrect application” of the guidelines.
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Finally, the Court instructed courts to review all sentences -- whether within or
outside the advisory guidelines range -- for reasonableness as measured against the
sentencing factors set forth in 18 U.S.C. § 3553(a). 125 S. Ct. at 765-66.
I agree with our panels that have interpreted Booker as requiring a two step
process in imposing and reviewing sentences under the new advisory guidelines.
“We first ask whether the district court correctly applied the guidelines in determining
a guidelines sentencing range. If the guidelines were correctly applied, we then
consider whether the sentence chosen by the district court was reasonable in light of
all the § 3553(a) factors.” United States v. Hadash, 408 F.3d 1080, 1082 (8th Cir.
2005). My concern grows out of dicta in United States v. Haack that inserted an
intermediate step in this process: after determining the correct sentencing range, “the
court should then decide if a traditional departure is appropriate under Part K and/or
§ 4A1.3” of the guidelines. 403 F.3d 997, 1003 (8th Cir.), cert. denied, 126 S. Ct.
276 (2005). In this case, applying that dicta, the court analyzes a number of
“traditional departure” issues under pre-Booker mandatory guidelines authorities.
In my view, this approach unduly complicates our appellate task and may
compel a significant number of essentially meaningless remands. In reviewing post-
Booker sentences outside the guidelines range imposed by a district court that
correctly determined that range, I would instead adopt the approach of the Seventh
Circuit: “after Booker what is at stake is the reasonableness of the sentence, not the
correctness of the ‘departures’ as measured against pre-Booker decisions that cabined
the discretion of sentencing courts to depart from guidelines that were then
mandatory.” United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005).
By this approach, I do not suggest that district courts should ignore altogether
the Sentencing Commission’s policy statements in § 4A1.3 and Part 5K of the now-
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advisory guidelines. The district court must give reasons for sentencing outside a
properly determined guidelines range. Explaining whether those reasons are
consistent with prior limitations on the court’s departure authority under the
mandatory guidelines will obviously assist this court in determining on appeal
whether the sentence is reasonable, and may well be essential when, as in Haack, the
government has filed a substantial assistance motion. However, many departure rules
under the mandatory guidelines have little or no practical impact on sentencing under
the post-Booker advisory guidelines. In determining whether to remand under
§ 3742(f)(1) because of “an incorrect application of the sentencing guidelines,” I
would deem any such violations of those rules to be harmless error.
In this case, for example, I consider the alleged departure notice error to be
harmless because, after Booker, every defendant is aware that the court may sentence
outside the guidelines range based on the § 3553(a) factors. I also consider the
district court’s alleged errors in relying on prior arrests and in departing upward from
criminal history category IV to be harmless because they are not reversible error
under Booker, so long as the sentence is reasonable. Because the court determines,
correctly in my view, that Hawk Wing’s sentence is reasonable, a remand on either
or both of these grounds would not result in a different sentence.
Subject to these caveats, I concur and join in the opinion of the court.
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