                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3534
                                   ___________

United States of America,               *
                                        *
              Appellee,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Arkansas.
Carl Wiley,                             *
                                        *
              Appellant.                *
                                   ___________

                             Submitted: September 27, 2007
                                Filed: December 6, 2007 (Amended: 12/06/07)
                                 ___________

Before COLLOTON, ARNOLD, and GRUENDER, Circuit Judges.
                          ___________

COLLOTON, Circuit Judge.

       Carl Wiley pled guilty to conspiracy to commit commercial check fraud, in
violation of 18 U.S.C. §§ 371 and 513(a). The district court sentenced him to a term
of 60 months’ imprisonment, which represented an upward variance from the advisory
guideline range of 27 to 33 months. Wiley appeals, arguing that the sentence is
unreasonable with regard to 18 U.S.C. § 3553(a). We vacate the sentence and remand
for resentencing.
                                           I.

       Wiley was involved in a fraudulent check-cashing scheme with three co-
conspirators. To perpetrate the crime, the conspirators purchased identification cards,
social security numbers, and payroll checks from homeless persons or others in need
of financial assistance. Using these identities, the conspirators opened new bank
accounts. The conspirators then manufactured fraudulent commercial checks, payable
to the account holders, using authentic bank routing and account information from
paychecks or pay stubs. They deposited the fraudulent checks into the newly-opened
accounts, then withdrew cash from those accounts before the bank could determine
that the incoming checks were fraudulent. Once the cash was obtained, the
conspirators abandoned the bank accounts and started anew with another name and
another new account.

       Wiley had been convicted of conspiracy to defraud the United States in 1998
for his role in a counterfeit check-cashing ring. While serving a sentence for that
offense, Wiley wrote letters to one of his co-conspirators in the instant case, coaching
him on how to commit bank fraud. In return, Wiley received money while he was in
prison, and after Wiley escaped from custody in spring 2004, the conspirators paid
Wiley additional funds for his assistance with the scheme.

       At sentencing in this case, the court heard argument from Wiley’s counsel, who
urged a sentence at the low end of the advisory guideline range, i.e., 27 months’
imprisonment. The court then afforded Wiley his right of allocution. Next, after
hearing briefly from a probation officer about his presentence investigation, the court
announced, with apparent reference to 18 U.S.C. § 3553(a), that trial judges “must
take these factors into consideration.” The court expressed concern that Wiley was
“a man who was serving time” who “sent information directing others in the free
world,” even though “he was sent to prison to become rehabilitated.” Noting that
Wiley “didn’t take advantage of it but used it in order to set up criminal activities in

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the free world,” the court asked counsel for their responses. The government
responded by expressing agreement with the court’s concerns, but stating that it would
“defer to the sentencing guidelines” in selecting an appropriate sentence. Wiley’s
counsel acknowledged that the offense conduct was disturbing, but said Wiley had
“changed” and now realized that he “needs to turn a new leaf on his life and be a
productive citizen.”

      The district court then determined an advisory guideline sentence of 27 to 33
months’ imprisonment, based on a total offense level of 12 and a criminal history
category V. The offense level calculation included a finding that the financial loss
from the offense was more than $10,000 but less than $30,000. PSR ¶ 22; USSG
§ 2B1.1(b)(1)(C). This finding apparently was based on a stipulation of the parties
in Wiley’s plea agreement that the loss was within that range. (Plea Agreement, ¶ 5.B;
PSR ¶ 17).

       After recounting the advisory sentencing range, the court said it was not
persuaded that the guideline sentence would provide just punishment for the offense
or afford adequate deterrence to criminal conduct. The court observed that Wiley had
“been involved in a lot of criminal activity” and was “back before this court again.”
The court then announced its judgment that Wiley be sentenced to a term of 60
months’ imprisonment, ordered restitution in an amount of $34,291.20, and advised
Wiley of his right to appeal. The court granted the government’s request that the
restitution order be made joint and several with Wiley’s co-conspirators, and the
hearing was adjourned.

                                         II.

      Wiley argues that the district court’s decision to vary upward to a term of 60
months’ imprisonment from the advisory range of 27-33 months made the sentence
unreasonable with regard to 18 U.S.C. § 3553(a). See United States v. Booker, 543

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U.S. 220, 261 (2005). The government responds that Wiley forfeited this claim of
error in the district court, and that we should review the district court’s decision only
for plain error under Federal Rule of Criminal Procedure 52(b). The government
further contends that the sentence is not unreasonable.

        In considering whether Wiley has forfeited a claim of unreasonableness, such
that plain error review should apply, we observe that a district court is not required to
provide advance notice to a defendant that it may vary from the advisory guideline
sentence. United States v. Levine, 477 F.3d 596, 606 (8th Cir.), cert. denied, 127 S.
Ct. 3023 (2007). Thus, there will be occasions, as in this case, where the defendant
first learns of the district court’s intention to vary upward from the advisory range to
a particular term of imprisonment when the court pronounces the final sentence. The
government apparently urges that the defendant must then raise an objection to the
sentence just pronounced, and essentially ask for reconsideration, in order to preserve
for appeal a contention that the length of the sentence is unreasonable with regard to
§ 3553(a).

       The government has not identified a case decided by our court after Booker that
imposes this after-the-fact objection requirement. We are persuaded by the views of
several other circuits that such a requirement is not warranted, at least where a party
asserts only that the length of the sentence is unreasonable with regard to § 3553(a):

      To insist that defendants object at sentencing to preserve appellate
      review for reasonableness would create a trap for unwary defendants and
      saddle busy district courts with the burden of sitting through an objection
      – probably formulaic – in every criminal case. Since the district court
      will already have heard argument and allocution from the parties and
      weighed the relevant § 3553(a) factors before pronouncing sentence, we
      fail to see how requiring the defendant to then protest the term handed
      down as unreasonable will further the sentencing process in any
      meaningful way. Certainly we do not mean to discourage district courts
      from entertaining argument about the reasonableness of a sentence after

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      its pronouncement, nor do we suggest that our longstanding insistence
      on proper objections as to other sentencing issues, e.g., the application
      of a guideline adjustment, should be relaxed. All we conclude here is
      that our review of a sentence for reasonableness is not affected by
      whether the defendant had the foresight to label his sentence
      “unreasonable” before the sentencing hearing adjourned.

United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th Cir. 2005); accord United
States v. Bras, 483 F.3d 103, 113 (D.C. Cir. 2007); United States v. Torres-Duenas,
461 F.3d 1178, 1182-83 (10th Cir. 2006), cert. denied, 127 S. Ct. 3054 (2007); United
States v. Saffore, 216 F. App’x 531, 533 (6th Cir.), cert. denied, 127 S. Ct. 3077
(2007). We therefore turn to the question whether the length of Wiley’s sentence is
unreasonable.

       The government contends that the 60-month sentence is reasonable because it
reflects the financial loss attributable to the conspiracy. The United States Attorney
urges that while he was “willing to stipulate to the loss amount specifically charged
in the Indictment, the Court held Wiley accountable for the loss associated with the
entire conspiracy.” (Appellee Br. 11). The total loss amount now advanced by the
government – $293,039.17 – would have resulted in an advisory guideline range of
57-71 months’ imprisonment, which encompasses the ultimate sentence of 60 months.

       The assertion that the court relied on financial loss of more than $293,000 is not
supported by the record. Consistent with the presentence report, the district court
determined a total offense level of 12 under the advisory guidelines. This conclusion
was premised on a finding that the loss amount was between $10,000 and $30,000, as
stipulated by the parties. (PSR ¶ 22). If the district court had found that the loss
amount was $293,039.17, as the government now contends, then the specific offense
characteristic for loss would have increased the offense level by 12 levels rather 4, see
USSG § 2B1.1(b)(1)(G), and Wiley’s total offense level would have been 20, rather
than 12. Nor does the record support a conclusion that the district court varied upward


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from the advisory range based on a financial loss greater than the amount to which the
parties stipulated. The court never mentioned the loss amount as a reason for the
variance. If the court had relied on a greater loss amount to justify the variance, then
we likely would be confronted with an internally inconsistent rationale. The district
court was free to reject the government’s stipulation as artificially low, if the evidence
warranted that conclusion (and if the government’s advocacy did not breach the plea
agreement). See USSG § 6B1.4(d). But it could not find a loss of less than $30,000
for purposes of the advisory guidelines, and then reasonably vary from the advisory
range based on a loss finding of more than $290,000 for purposes of § 3553(a). See
United States v. Brown, 453 F.3d 1024, 1026 (8th Cir. 2006). And as we read the
record, the court did not do so.

       We thus examine the district court’s variance and its stated reasons under our
post-Booker framework. A sentence outside the advisory guideline range is not
presumptively unreasonable, but “[a]s the size of the variance grows, so too must the
reasons that warrant it.” United States v. Medearis, 451 F.3d 918, 920 (8th Cir. 2006).
The six-level variance adopted here is substantial, and the justification must be
proportionally compelling. See United States v. Myers, Nos. 06-3252, 06-3581, 2007
WL 2873599, at *6 (8th Cir. Oct. 4, 2007). We have said that a district court, in
applying § 3553(a), may consider factors already taken into account in calculating the
advisory range, United States v. White, Nos. 06-3781, 06-3886, 2007 WL 3225542,
at *8 (8th Cir. Nov. 2, 2007), but we also have cautioned that “substantial variances
based upon factors already taken into account in a defendant’s guidelines sentencing
range seriously undermine sentencing uniformity.” United States v. Solis-Bermudez,
501 F.3d 882, 885 (8th Cir. 2007) (emphasis added) (internal quotation omitted).

       The district court’s brief discussion in this case focused on the facts that Wiley
had a serious criminal history and that during his most recent stint in prison, he had
used the time to plan and assist in carrying out the instant offense. The district court’s
concern with providing just punishment and affording adequate deterrence are

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legitimate considerations under § 3553(a), but it is also true that the advisory
sentencing guidelines take into account the principal factors discussed by the district
court. Wiley’s prior criminal convictions for forgery in 1983, escape in 1994, and
conspiracy to defraud in 1998 each resulted in three criminal history points under the
advisory guidelines. His criminal history score was increased by three more points
because he committed the instant conspiracy offense while under a criminal justice
sentence and while incarcerated. USSG § 4A1.1(d), (e). The total criminal history
score of 12 points placed him in criminal history category V. The court apparently
believed that Wiley’s incorrigibility nonetheless warranted additional prison time, and
we do not think that conclusion is unreasonable. But as with many post-Booker
sentencing appeals, the fighting issue here is not the permissibility of a variance, but
the degree.

       Given that the guidelines took into account Wiley’s recidivism and his
commission of this offense while incarcerated, we do not believe the recommended
range so substantially under-represented the seriousness of Wiley’s criminal history
as to justify imposing a sentence almost twice as long as the top of the advisory
guideline range. This case is distinguishable from others in which we have affirmed
substantial upward variances based on aggravated criminal histories, such as where
the defendants have amassed more than twice the number of criminal history points
required to reach the highest category under the guidelines. See United States v.
Maurstad, 454 F.3d 787, 789-90 (8th Cir. 2006); United States v. Lyons, 450 F.3d
834, 836-37 (8th Cir.), cert. denied, 127 S. Ct. 358 (2006); United States v. Shannon,
414 F.3d 921, 922-24 (8th Cir. 2005). It is more analogous to United States v.
Rouillard, 474 F.3d 551 (8th Cir. 2007), where we held that an eight-level upward
variance “based on conduct accounted for in the Guidelines” was an abuse of
discretion, noting that such variances lead to unwarranted sentence disparities. Id. at
558. In balancing the need to avoid unwarranted disparities in sentencing with the
district court’s concern with just punishment and adequate deterrence, we conclude



                                          -7-
that the sentence of 60 months’ imprisonment is unreasonable on this record.
Accordingly, the sentence is vacated, and the case is remanded for resentencing.

        On remand, the district court may consider any evidence relevant to the factors set
forth in 18 U.S.C. § 3553(a) that it could have considered at the first sentencing hearing. See
United States v. Kendall, 475 F.3d 961, 964 (8th Cir. 2007). If the district court wishes to
consider applying, on its own initiative, a loss amount greater than the amount to
which the parties stipulated, then it should give Wiley notice and an opportunity to be
heard on that question.

GRUENDER, Circuit Judge, concurring.

       I fully concur in the Court’s opinion and judgment. I write separately to
emphasize that our holding regarding the appropriate standard of review applies to the
narrow circumstances of this case. We hold that an after-the-fact objection is not
required to preserve errors where a party only asserts that the length of the sentence
is unreasonable. This holding should not be construed as applying to all challenges
to the reasonableness of a sentence.

       We have previously held that the reasonableness of a sentence is reviewed for
abuse of discretion and that a district court abuses its discretion when it: (1) fails to
consider a relevant factor that should have received significant weight; (2) gives
significant weight to an improper or irrelevant factor; or (3) considers the appropriate
factors but commits a clear error of judgment in weighing those factors. United States
v. Haack, 403 F.3d 997, 1003-04 (8th Cir. 2005).

       Wiley essentially argues that the district court erred in weighing the appropriate
sentencing factors under § 3553(a). In this situation, I agree fully with the Court that
requiring an after-the-fact objection at sentencing would serve no useful purpose.
Hence, I read the Court’s holding that Wiley’s failure to object at sentencing does not


                                             -8-
require plain error review to apply only where a party challenges the length of the
sentence by asserting that the district court committed a clear error of judgment in
weighing the appropriate factors.

       However, this case does not address challenges that the district court abused its
discretion in sentencing based on the first two grounds identified in Haack.
Therefore, this opinion does not prevent a panel in a future case from holding that a
party must object in order to avoid plain error review of challenges based on the
district court’s failure to consider relevant factors or based upon the district court’s
consideration of improper or irrelevant factors. While that ultimate determination will
be left for another day, we have held that the purpose of an objection is to provide the
district court an opportunity to correct any substantive errors before they are appealed.
See Niemiec v. Union Pac. R.R. Co., 449 F.3d 854, 857 (8th Cir. 2006). As such,
requiring an objection to the district court’s consideration of inappropriate factors or
a sufficient argument identifying appropriate factors for the district court’s
consideration would serve a useful purpose by furthering the long-standing goal of
allowing the district court the opportunity to correct any potential errors in the first
instance.

      With these observations, I join the Court’s opinion and judgment.
                      ______________________________




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