                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 07a0072p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                             X
                                      Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                              -
                                                              -
                                                              -
                                                                 No. 05-3708
               v.
                                                              ,
                                                               >
 JAMES M. FUNK,                                               -
                                     Defendant-Appellee. -
                                                             N
                             Appeal from the United States District Court
                                   for the Northern District of Ohio.
                          No. 02-00708—James G. Carr, Chief District Judge.
                                            Argued: June 23, 2006
                                  Decided and Filed: February 22, 2007
  Before: BOGGS, Chief Judge; BATCHELDER, Circuit Judge; BELL, Chief District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: Joseph R. Wilson, ASSISTANT UNITED STATES ATTORNEY, Toledo, Ohio, for
Appellant. Spiros P. Cocoves, Toledo, Ohio, for Appellee. ON BRIEF: Joseph R. Wilson,
ASSISTANT UNITED STATES ATTORNEY, Toledo, Ohio, for Appellant. Spiros P. Cocoves,
Toledo, Ohio, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        ALICE M. BATCHELDER, Circuit Judge. The government appeals the 150-month sentence
imposed by the district court after we remanded James Funk’s case for re-sentencing in light of
United States v. Booker, 543 U.S. 220 (2005). See United States v. Funk, 124 F. App’x 987, 991
(6th Cir. 2005) (unpublished) (remanding pursuant to United States v. Barnett, 398 F.3d 516, 527-28
(6th Cir. 2005)). Because we conclude that the district court considered “impermissible factors” and
failed adequately to justify its substantial downward variance from the applicable guidelines range,
we again vacate Funk’s sentence and remand for re-sentencing.




        *
           The Honorable Robert Holmes Bell, Chief United States District Judge for the Western District of Michigan,
sitting by designation.


                                                         1
No. 05-3708           United States v. Funk                                                    Page 2


                                                 I.
        Funk and several others were part of a conspiracy to bring drugs from Florida and Texas to
the Marion, Ohio, area from 1998 to 2001. In 2002, Funk and seven of his cohorts were charged in
a one-count indictment with conspiracy to possess with intent to distribute cocaine and marijuana,
in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment specified that beginning in 1998 the
defendants conspired to obtain over 15 kilograms of cocaine and over 2,000 pounds of marijuana
and to distribute it in the Marion area. All of Funk’s co-conspirators pled guilty, but Funk went to
trial. While most of the trial testimony focused on marijuana trafficking, one witness testified that
in 1998 he had on one occasion purchased eleven ounces of cocaine from Funk for $9,000 in Marion
County, and on each of three other occasions, he had purchased one ounce of cocaine from Funk.
        The jury found Funk guilty. The pre-sentence investigation report (“PSR”) calculated Funk’s
base offense level at 26, based on the possession of between 100 and 400 kilograms of marijuana,
see U.S.S.G. § 2D1.1(c)(7), and recommended a career offender enhancement pursuant to U.S.S.G.
§ 4B1.1(a). Funk’s final offense level, therefore, was 34 and, with a criminal history category of
VI, his guidelines sentencing range was 262 to 327 months’ imprisonment. Funk objected to one
aspect of the PSR not relevant here, and the district court, treating the sentencing guidelines as
mandatory, sentenced Funk to 262 months’ imprisonment. On appeal, we affirmed Funk’s
conviction, but vacated his sentence and remanded the case to the district court for re-sentencing.
See Funk, 124 F. App’x at 991.
        The district court re-sentenced Funk on April 25, 2005. The court utilized the same PSR –
which all parties at that point agreed had correctly calculated the guidelines range – but Funk now
argued that utilizing the career offender enhancement made the sentence unreasonably high. He
therefore requested a sentence within the guidelines range as it would have been calculated absent
the career offender enhancement. The district court recognized that Funk was a career offender and
that the applicable range was 262-327 months’ imprisonment, and stated that it would give
presumptive weight to the guideline range, commenting that “marijuana trafficking is an extremely
serious offense.” The following exchange then took place:
       THE COURT: . . . Nonetheless, I take note that as I recall the activities on [sic]
       which the defendant and his cohorts participated did not involve cocaine or heroin
       or crack cocaine or methamphetamine or ecstasy or any of that sort of stuff, that did
       not involve the use of firearms, so far as we are aware. Is that correct Ms. [AUSA]
       Dustin?
       Ms. ROTELL DUSTIN: No, your Honor.
       THE COURT: People weren’t shot at or –
       MS. ROTELL DUSTIN: No, your Honor.
       THE COURT: And, Agent, is that correct, to your understanding, the display and
       use of weapons was not part of the –
       AGENT APPLE: That’s correct.
       THE COURT: – conspiracy? Okay. So that the seriousness of the offense is
       moderated by those factors. Now, of course, had those factors been present, they
       would have made possibly the conviction and guidelines more severe.
No. 05-3708          United States v. Funk                                                         Page 3


       But I think it is noteworthy and fair to give the defendant credit for the somewhat
       unusual circumstance where apparently firearms were not a part of this activity – of
       course, certainly not to the extent that it became known during the course of a very
       lengthy and successful investigation – because all too often, as we are all aware,
       firearms are the tools of a drug dealer’s trade and with harmful consequences very
       all too often for people involved, innocent people, and law enforcement officers.
       I think a sentence somewhat within the guideline range, were there not a career
       offender finding, would be appropriate also, because I think that a sentence of that
       length more, indeed, potentially concerning more than ten years would promote
       respect for the law and emphasize the seriousness of the offense.
       I think it’s appropriate under all the circumstances to consider something in that
       range to provide a just punishment, one that incapacitates this defendant and
       hopefully deters him in the future, while concurrently being viewed, I believe, by the
       general public fully aware of all the facts and circumstances as one which
       appropriately fits the offense and the offender.
       I believe and, certainly, I hope, but I believe that by having Mr. Funk spend about
       ten years or more in prison may finally cause the flame to go out. Now, Mr. Funk,
       you’ve spent your – almost your entire adult life bumping into the law in one way
       or another, and I hope that losing maybe a third of the years that you have left to you
       will finally cause you, on returning to society, to be then and foreverafter [sic] a law-
       abiding citizen. And, candidly, I’m taking that into some consideration.
       You’ll be 50-some years old when you come out. And I’ve often expressed the view
       that I think there does come an age when many people – no matter what their past
       and the seriousness of their activities and how extensive it’s been – the time finally
       comes to say, Hey, not much time is left to me and I’d rather spend it outside than
       inside.
       And, also, I think a sentence of that length within the guideline range would be an
       adequate deterrence to others in your situation, including those considerably younger
       than yourself. I think anybody who might become aware of the fact that [even only]
       selling marijuana can get you ten years or more in prison, I would hope that that
       would be an adequate public deterrence.
       And, finally, in terms of the need to protect the public, I really am confident that
       upon your release the likelihood that you would resume this kind of activity or,
       indeed, any other unlawful activity would be very, very slight. And, on the other
       hand, to apply the guideline range that would be proscribed [sic] under the career
       offender – with career offender enhancement, of 262 months, that in your case could
       well serve – prove to be a life sentence.
       And I think that being so, it certainly would leave you, in any event, with very little
       time left to enjoy freedom. And I think that a sentence of that severity, even taking
       into account the extensiveness, frequency, and seriousness of your prior criminal
       conduct in this offense, would simply not be proportionate to the crime that you
       committed that brings you here. And I’m not so sure that a sentence of that length
       would promote respect for the law.
The court went on to note its belief that the public is ahead of the courts and Congress in
determining which sentences are excessive and unfair, and how in this case a sentence within the
properly calculated guideline range would “promote disrespect for the law” because of its
No. 05-3708           United States v. Funk                                                      Page 4


excessiveness. It concluded that it was “inclined to apply the guideline range as if the career
offender enhancement were not there.”
         The government objected to this treatment, arguing that a sentence within the properly
calculated guideline range would be a reasonable sentence because Funk is in fact a career offender,
“[h]is criminal history shows nothing but disrespect for the law,” and an examination of his criminal
history showed that there is a need to protect the public from more than just marijuana trafficking.
It also noted that a sentence that did not take into account the career offender enhancement would
“result in a disparity among other defendants who have been sentenced for marijuana conspiracies
or other conspiracies involving this amount of drugs and this type of record. They have received
longer sentences because of the fact they’re career offenders.”
        The district court considered this argument a “fair point,” but challenged the government to
give examples of sentences out of line with that which it intended to give Funk. The government
– on admittedly short notice – could not do so, and an extensive discussion ensued regarding how
the sentencing guidelines may or may not have already taken into account recidivism by considering
the defendant’s criminal history. Considering the guideline range without the career offender
enhancement – which yielded an offense level of 26 rather than 34, and a sentencing range of 120 -
150 months rather than 262-327 months – the district court pronounced a sentence of 150 months
in prison, which it characterized as “the high end of the guideline range.” In the amended judgment
entered on April 25, 2005, the district court listed Funk’s guideline range as 262-327 months’
imprisonment, and stated its reasons for giving Funk a downward variance:
       The Court, pursuant to 18 U.S.C. § 3553(a), did not sentence the defendant under the
       advisory guideline range. The Court found that the career enhancement was
       excessive and unreasonable. In making that determination, the Court found:
               1.      that even though the underlying charge was marijuana, which is an
       extremely serious offense, the defendant and his cohorts did not participate in
       cocaine, heroin, ecstasy, methamphetamine or firearms;
               2.      a term of 150 months provides a just punishment, one that
       incapacitates this defendant and deters the defendant in the future[;]
               3.      a term of 150 months appropriately fits this defendant and his offense;
               4.      [a term of 150 months] provides an adequate public deterrence and
       safety[.]
Both Funk and the government timely appealed, though Funk subsequently withdrew his appeal,
leaving only the government’s appeal for our consideration.
                                                 II.
       The Booker Court instructed appellate courts to review a sentence imposed under an advisory
guidelines scheme for reasonableness. See Booker, 543 U.S. at 261. We have stated that review for
reasonableness requires an appellate court
       to consider not only the length of the sentence but also the factors evaluated and the
       procedures employed by the district court in reaching its sentencing determination.
       Thus, we may conclude that a sentence is unreasonable when the district judge fails
       to “consider” the applicable Guidelines range or neglects to “consider” the other
       factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge
       deems an appropriate sentence without such required consideration.
United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). In Webb, we also acknowledged that a
district court will act unreasonably if it bases the sentence on impermissible factors. Id. at 385.
No. 05-3708             United States v. Funk                                                                   Page 5


Moreover, a district court must acknowledge “the defendant’s applicable Guidelines range” as well
as discuss “the reasonableness of a variation from that range.” United States v. Jackson, 408 F.3d
301, 305 (6th Cir. 2005).
        Further, we have held that a sentence within the applicable guidelines range carries with it
a rebuttable presumption of reasonableness, see United States v. Williams, 436 F.3d 706, 708 (6th
Cir. 2006), but a sentence outside that range – although not entitled to the presumption – is not
presumptively unreasonable. See United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006).
Finally, in accordance with the opinions of several of our sister circuits, we have said that the farther
the sentencing court varies from the guidelines range one way or another, the more compelling the
justification for that variance must be. See United States v. Davis, 458 F.3d 491, 496 (6th Cir. 2006)
(“And like every court of appeals to consider the question, we take the view that when the district
court independently chooses to deviate from the advisory guidelines range (whether above or below
it), we apply a form of proportionality review: ‘the farther the judge’s sentence departs from the
guidelines sentence . . . the more compelling the justification based on factors in section 3553(a)’
must be.” (quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005))).
        Although the district court stated at the sentencing hearing that it was imposing a sentence
at the “high end” of the guidelines range, it is plain that the court was not referring to the guidelines
range that was in fact applicable to Funk. Such a sentence is not entitled to a presumption of
reasonableness because it is not the defendant’s properly calculated guidelines range. See Williams,
436 F.3d at 708 (“We now join several sister circuits in crediting sentences properly calculated
under the Guidelines with a rebuttable presumption of reasonableness.”) (emphasis added).
Complicating the matter, the district court later entered an amended judgment, stating that the
appropriate guidelines range was 262 - 327 months; stating that it would not sentence under that
range because it included the career offender enhancement which the court viewed as “excessive and
unreasonable”; and imposing instead the same sentence it had arrived at using the guidelines
calculation that did not include that enhancement. Under either of the district court’s rationales, this
sentence is not one that is within the properly calculated guideline range, and we must therefore
determine, without the aid of the presumption, whether the sentence is reasonable.
       The properly calculated guidelines range in this case called for 262-327 months’
imprisonment. In determining whether the sentence actually imposed by the district court – 150
months – is reasonable, we must look first to see whether it was based on impermissible factors, and
second, whether it is substantively reasonable in light of the § 3553(a) factors. And as we said in
Davis, “because   one of those factors requires consideration of the guidelines sentencing range,
§ 3553(a)(4)[1], and because the guidelines ultimately purport to account for most, if not all, of the
§ 3553(a) factors, . . . our review starts with the sentencing estimate provided by the Sentencing



        1
          Section 3553(a)(4) provides:
        (a) Factors to be considered in imposing a sentence -- The court shall impose a sentence sufficient,
        but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this
        subsection. The court, in determining the particular sentence to be imposed, shall consider --
         (4) the kinds of sentence and the sentencing range established for --
            (A) the applicable category of offense committed by the applicable category of defendant as set
        forth in the guidelines--
             (i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States
        Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether
        such amendments have yet to be incorporated by the Sentencing Commission into amendments issued
        under section 994(p) of title 28); and
              (ii) that, except as provided in section 3742(g), are in effect on the date the defendant is
        sentenced[.]
        18 U.S.C. § 3553(a)(4)(A).
No. 05-3708           United States v. Funk                                                      Page 6


Commission for certain types of crimes and certain types of criminals.” Davis, 458 F.3d at 496
(internal citations omitted).
        In its amended judgment, rather than adopting its statement at the sentencing hearing that
a sentence within the properly calculated guideline range would, because it was too harsh, promote
disrespect for the law, the district court said that it would not sentence Funk within the appropriate
range because the career enhancement was “excessive and unreasonable.” The court gave four
reasons for making that determination: the conspiracy did not involve cocaine or guns; a sentence
of 150 months – within the guidelines range if the career offender provisions were not taken into
account – would be just, and would incapacitate Funk and deter him from future criminal activity;
a sentence of 150 months would be appropriate to the defendant and to the offense; and a sentence
of 150 months would provide adequate public deterrence and safety. In essence, then, the court
disregarded the “type” of criminal Funk is, see Davis, 458 F.3d at 496 (“our review starts with the
sentencing estimate provided by the Sentencing Commission for certain types of crimes and certain
types of criminals”), and sentenced him as if he were not a career offender, and particularly, as if
he did not have “at least two prior felony convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1(a)(3).
         The district court’s first reason for finding the enhancement excessive was that the
conspiracy for which Funk was convicted did not involve cocaine or firearms. The finding that the
conspiracy did not involve the use of guns appears to be correct, and, while the finding that cocaine
was not involved is clearly not correct, we agree with Funk that by failing to object to that finding
at the sentencing hearing, the government has waived any objection to it. But that does not end the
matter. It is clear that, had Funk and his cohorts used guns in support of their trafficking activities,
the properly calculated guidelines sentence would have been greater than the sentencing range of
262-327 months, which the district court acknowledged in its amended judgment was the
appropriate guidelines range. It therefore defies logic to reduce the defendant’s sentence because
of the absence of this factor; the properly calculated guidelines range has already taken into account
its absence. See United States v. Duhon, 440 F.3d 711, 718-19 (5th Cir. 2006) (rejecting a
downward variance for a defendant convicted of possession of child pornography on the basis that
the defendant did not attempt to solicit a child because “[h]ad [the defendant] solicited children for
sex . . . the sentencing range would have been . . . more than five times his actual Guideline
sentence”); United States v. McMannus, 436 F.3d 871, 875 (8th Cir. 2006) (rejecting a sentence of
120 months’ imprisonment, 142 months below the guidelines range, where the variance was granted
“primarily based on the fact that [the defendant had] no prior criminal history points” because the
lack of criminal history points was already taken into consideration in calculating the applicable
guidelines range).
        The remaining reasons set out in the amended judgment for finding the enhancement
excessive are simply a reiteration of the court’s view that a sentence of 150 months would be
sufficient. The court’s soliloquy at the hearing provides some greater explanation: it would promote
respect for the law and emphasize the seriousness of the offense; it would allow Funk to be released
at an age when he would be less likely to commit any further crimes; and it would be sufficiently
severe to deter him – and younger people – from committing other crimes and would therefore
protect the public. Finally, the court said that 262 months’ incarceration would “prove to be a life
sentence,” which is disproportionate to the crime committed “even taking into account the
extensiveness, frequency, and seriousness” of Funk’s prior criminal conduct, and that the public
would be disrespectful of the law if such a harsh guidelines sentence were imposed.
        We think it is clear that in sentencing Funk as if he were not a career offender, the district
court erred. We find the Eleventh Circuit’s opinion in United States v. Williams, 456 F.3d 1353
(11th Cir. 2006), instructive. In that case, the district court had stated several reasons for sentencing
the defendant well below the applicable advisory guidelines range, including that it would not
No. 05-3708                United States v. Funk                                                                   Page 7


sentence the defendant as a career offender because it viewed the career offender enhancement as
“a totally inappropriate way to consider the individual nature of an offense or a defendant’s
individual background.” Id. at 1369. The Eleventh Circuit held that “[t]his, too, was error.”2 Id.
Noting that U.S.S.G. § 4B1.1 is the result of Congress’s policy – set out in 28 U.S.C. § 994(h) –
requiring that the Sentencing Commission ensure that certain kinds of repeat offenders receive
sentences at or near the statutory maximums, the court held:
         Congress’s goal was not simply to punish offenders with prior criminal histories
         more severely than first time offenders; Congress also wanted to target specific
         recidivism, particularly repeat drug offenders. There is no question Williams is a
         recidivist drug dealer. To the extent the district court believed Williams’ prior
         criminal history was adequately taken into consideration in his criminal history
         category of VI, it ignored Congress’s policy of targeting recidivist drug offenders for
         more severe punishment. The district court, therefore, erred in mitigating Williams’
         sentence based on its disagreement with the career offender Guidelines provision.
Williams, 456 F.3d at 1370.
        We think the Eleventh Circuit’s analysis is correct. The district court explicitly refused to
sentence Funk as a career offender because it viewed that enhancement as “excessive and
unreasonable.” But the district court’s disagreement with Congress as to what constitutes an
appropriate sentence for a repeat offender of the kind described by U.S.S.G. § 4B1.1      is a policy
matter, and not a permissible factor upon which to base a sentencing determination.3 See Mistretta
v. United States, 488 U.S. 361, 364 (1989) (“Congress, of course, has the power to fix the sentence
for a federal crime, and the scope of judicial discretion with respect to a sentence is subject to
congressional control.”) (internal citation omitted); United States v. Miller, 450 F.3d 270, 275 (7th
Cir. 2006) (noting that “§ 3553(a) . . . does not include a factor such as ‘the judge thinks the law
misguided’”).
       The guidelines range applicable to Funk’s case – 262-327 months’ incarceration – is indeed
very high. But in large part that is precisely because he is a career offender, and sentencing him as
if he were not necessarily runs afoul of the mandate that courts impose similar sentences    for “the
applicable category of offense committed by the applicable category of defendant.”4 See Booker,

         2
            By finding error in this “too,” the court was referring to its holding in the first part of the opinion that the
district court had erred in mitigating the defendant’s sentence based on its disagreement with Congress’s policy decision
to penalize drug offenses involving crack cocaine more severely than powder cocaine. The court held that “[f]ederal
courts are not at liberty to supplant this policy decision. . . . This is simply an impermissible sentencing consideration.”
Williams, 456 F.3d at 1367.
         3
           The district court in this case did not find that there was a genuine question as to whether Funk is in fact a
career offender – all parties and the court recognized that he is. Nor did the court offer any justification for refusing to
apply the enhancement other than the generic criticism that it is “excessive,” and the court’s opinion that a sentence
without the enhancement “would promote respect for the law.” Neither reason is anything more than a disagreement
with Congress about what an appropriate sentence for a repeat offender meeting the criteria of U.S.S.G. § 4B1.1 would
be.
         4
             It is not necessary for a party to produce specific examples of sentences imposed in other cases to show that
a sentence well outside the applicable guidelines range will create sentencing disparities; while a broader range of
sentences can be expected for like offenses committed by like defendants in the post-Booker world than was previously
expected, see Booker, 543 U.S. at 252-53; Foreman, 436 F.3d at 644, one of the goals of the sentencing guidelines is
still to create some degree of uniformity. See U.S.S.G. § 1A1.1, p.s. (noting that in passing the Sentencing Reform Act
of 1984, “Congress sought reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed
for similar criminal offenses committed by similar offenders”); United States v. Jackson, 401 F.3d 747, 749 (6th Cir.
2005) (noting that “[a] paramount policy of the Guidelines is the promotion of reasonable uniformity in sentencing”
No. 05-3708               United States v. Funk                                                       Page 8


543 U.S. at 259 (quoting 18 U.S.C. § 3553(a)(4)). As the Sentencing Commission has explained
in the Commentary to § 4B1.1:
         Section 994(h) of Title 28, United States Code, mandates that the Commission assure
         that certain “career” offenders receive a sentence of imprisonment “at or near the
         maximum term authorized.” Section 4B1.1 implements this directive, with the
         definition of a career offender tracking in large part the criteria set forth in 28 U.S.C.
         § 994(h). However, in accord with its general guideline promulgation authority
         under 28 U.S.C. § 994(a) - (f), and its amendment authority under 28 U.S.C. § 994(o)
         and (p), the Commission has modified this definition in several respects to focus
         more precisely on the class of recidivist offenders for whom a lengthy term of
         imprisonment is appropriate and to 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). The Commission’s refinement of this
         definition over time is consistent with Congress’s choice of a directive to the
         Commission rather than a mandatory minimum sentencing statute (“The [Senate
         Judiciary] Committee believes that such a directive to the Commission will be more
         effective; the guidelines development process can assure consistent and rational
         implementation for the Committee’s view that substantial prison terms should be
         imposed on repeat violent offenders and repeat drug traffickers.” S. Rep. No. 225,
         98th Cong., 1st Sess. 175 (1983)).
U.S.S.G. § 4B1.1, comment. (backg’d). We therefore hold that a district court making sentencing
determinations may not implicitly reject Congress’s policy decision to prescribe harsher penalties
for career offenders by ignoring or outright rejecting a defendant’s status as a career criminal
offender.
         Again, however, this does not end the matter. 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,” Davis, 458 F.3d at 496, we would still need to determine whether the district court
adequately justified the extent of that deviation. Here we conclude that it did not. The district court
has not provided a sufficient “justification based on factors in section 3553(a),” id., to support a
reduction of more than 40% from the bottom of the applicable guidelines range. The error here is
not a procedural one; the district court did in fact consider various of the § 3553(a) factors. The
error is substantive; the district court failed to identify the characteristics peculiar to this defendant
that justify the variance. See United States v. Eura, 440 F.3d 625, 634 (4th Cir. 2006) (“[A]
sentencing court must identify the individual aspects of the defendant’s case that fit within the
factors listed in 18 U.S.C. § 3553(a) and, in reliance on those findings, impose a non-Guidelines
sentence that is reasonable.”).
        At the sentencing hearing, the district court tied several of its reasons for imposing only a
150-month sentence to the court’s hope that, given the age Funk would be at the expiration of that
sentence – “50-some years old,” according to the district court – his likelihood of recidivism is low.
We recognize that a defendant’s age does not factor into his guidelines calculation and that a
defendant’s age could therefore represent a legitimate basis for varying from the otherwise
applicable range in an unusual circumstance. See Davis, 458 F.3d at 498 (finding that a downward
variance from the guidelines range of 30-to-37 months’ incarceration to a sentence of one day in
prison based in part on the defendant’s age of 70 was not justified, although acknowledging that in
an appropriate case, age may present a legitimate ground for a variance); U.S.S.G. § 5H1.1
(recognizing that “[a]ge may be a reason to depart downward”). But a criminal history that meets


(internal quotations omitted)).
No. 05-3708           United States v. Funk                                                     Page 9


the criteria for the status of a career offender – which, in Funk’s case, includes three convictions for
violent crimes and one for drug trafficking – in the absence of some factor other than the defendant’s
age at the time of sentencing, does not appear to auger well for a low likelihood of recidivism, or,
contrary to the district court’s belief, a high degree of confidence that the substantially decreased
sentence provides adequate protection to the public. Nor does sentencing a career offender as if he
did not have a career offender’s criminal record appear to provide, as the district court suggested,
“adequate deterrence to others in [Funk’s] situation.” Indeed, one might assume that the contrary
would be true, and other career criminals would find reason for optimism that, if apprehended, they
too will be the objects of district courts’ sentencing beneficence.
         In short, we conclude that the district court erred in mitigating Funk’s sentence on the basis
of an impermissible sentencing factor, namely, the court’s disagreement with Congress’s policy
decisions as implemented by the Sentencing Commission in the career offender provisions, and by
failing adequately to justify its substantial deviation from the applicable guidelines range. We will
not vacate the sentence, however, if the error was harmless. “Under the harmless error test, a
remand for an error at sentencing is required 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.’” United
States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005) (quoting Williams v. United States, 503 U.S.
193, 203 (1992)). Here we cannot find that these errors did not substantially affect the district
court’s choice of sentence, and we cannot hold that the error is harmless.
                                                  III.
         For the foregoing reasons, we VACATE Funk’s sentence and REMAND the case to the
district court for re-sentencing.
