                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 16a0083n.06

                                          No. 15-1461
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                         Feb 08, 2016
                              FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )    ON APPEAL FROM THE
v.                                                      )    UNITED STATES DISTRICT
                                                        )    COURT FOR THE EASTERN
TIMOTHY DANIELS,                                        )    DISTRICT OF MICHIGAN
                                                        )
       Defendant-Appellant.                             )
                                                        )

BEFORE: BOGGS, WHITE, and DONALD, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Defendant-Appellant Timothy Daniels pleaded

guilty to possession of a weapon in a federal court facility, 18 U.S.C. § 930(e)(1), criminal

contempt of court, 18 U.S.C. § 401(3), and obstruction of justice, 18 U.S.C. § 1503. The district

court sentenced Daniels to 120 months’ imprisonment, forty-two months above the United States

Sentencing Guidelines’ advisory range.        Daniels appeals, arguing that his sentence is

procedurally unreasonable. Because the district court did not address the departure or the

reasons for it at sentencing, we VACATE Daniels’ sentence and REMAND for resentencing.

                                               I.

       On March 3, 2014, while on federal supervised release and state parole, Daniels entered a

federal courthouse in Detroit with two steak knives that were not detected by the courthouse

security screening. Daniels then went to see his probation officer, without an appointment, and

spoke to her about a recent encounter with police because he was absent from his halfway house

for a period of time. He also provided a urine sample, which tested negative for any substances.
No. 15-1461
United States of America v. Timothy Daniels

          After this meeting, Daniels went to the United States Marshal’s office, where he handed

the window clerk his probation officer’s business card, and said he had come to the courthouse to

kill his probation officer and a judge whose name was written on the back of the business card.

The Chief Deputy and Assistant Chief Deputy Marshal then escorted Daniels to a conference

room where they asked how he intended to kill his probation officer and the judge. Daniels

“replied, ‘With this’ and removed from his jacket pocket two old, wooden handled steak knives

with four inch serrated blades.” (PSR ¶ 11.) Daniels “was quickly disarmed without resistance.”

(Id.)

          During the interview that followed, Daniels told the Marshals he had been incarcerated

most of his life and “things were not going well” following his February 2014 release from

prison. (Id.) Consequently, he had planned to kill his probation officer and the judge so he

could return to prison “for the rest of his life.” (Id.; see also Plea Questionnaire, PID 44 (“I am

going to ask the Court to sentence me to life.”).) He also told the Marshals “[h]e did not follow

through on his plan as, after meeting with his probation officer, he felt she did not deserve to

die.” (PSR ¶ 11.) Daniels stated that if released, he would commit another crime to return to

prison.

          Daniels pleaded guilty without a plea agreement to possession of a weapon in a federal

court facility, criminal contempt of court, and obstruction of justice.

          In its presentence investigation report (PSR), the probation office detailed Daniels’

criminal history, including convictions of assault, armed robbery, possession of weapons, and

parole violations. Daniels stated that he had committed some of the crimes in order to return to

custody, and in some instances so he could receive mental-health treatment. Following a May

2014 psychological evaluation, a doctor concluded that Daniels “show[ed] little compunction


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United States of America v. Timothy Daniels

about doing whatever it takes to get sent back to prison” and that “real violence cannot be ruled

out if he ever determines that is what he needs to do to be returned to prison.” (Id. ¶ 54.)

       The PSR also detailed Daniels’ personal background, including a history of physical and

sexual abuse by his mother and her boyfriends, and his mental-health issues, including diagnoses

of “Anti-Social Personality Disorder, Schizoaffective Disorder, Dependent Personality Disorder,

Depressed Disorder, Borderline Intellectual Functioning, and one in 1993, for psychosis.” (Id.

¶¶ 44, 51.)   Daniels also had episodes of depression dating back to age five and reported

attempting suicide on four occasions.

       Based on a total offense level of twenty-two1 and a criminal-history category of IV, the

PSR calculated an advisory Guidelines range of sixty-three to seventy-eight months. Since

Daniels had an undischarged prison term that was the result of a parole violation, the PSR

recommended his sentence run consecutive to his undischarged term pursuant to the Sentencing

Guidelines. The PSR noted that an upward departure might be warranted if the district court

were to find that Daniels’ criminal-history category “substantially underrepresents the

seriousness of his criminal history or the likelihood he will commit further crimes,” because due

to the length of his most recent incarceration, most of his criminal convictions did not receive

criminal-history points. (Id. ¶ 77.) It also noted a downward departure might be warranted

because Daniels cooperated with authorities and confessed to an offense that otherwise may not


       1
          The PSR scored Daniels’ base offense level as fourteen with an eight-level
enhancement pursuant to U.S.S.G. § 2J1.2(b)(1)(B) for threatening “physical harm to his
probation officer with the intent to obstruct the administration of justice by influencing his
supervised release status, for the purpose of returning to prison,” (PSR ¶ 17), and a three-level
enhancement under U.S.S.G. § 3A1.2(a) because the victim was a government officer and the
offense was motivated by such status; the PSR also recommended a two-level reduction for
acceptance of responsibility and a one-level reduction for assisting authorities in the prosecution
of his misconduct, resulting in a total offense level of twenty-two. (Id. ¶¶ 16–25.)


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have been discovered. As additional sentencing considerations, the PSR mentioned, 1) Daniels’

childhood trauma and need for mental-health services, 2) that Daniels had repeatedly expressed a

desire to return to prison and a willingness to commit crimes to “ensure that end,” 3) that Daniels

had committed similar crimes in the past for the same purpose, and 4) due to his consistent

involvement with weapons and his “vow to commit more crimes in the future,” protection of the

public could warrant sentencing Daniels to a term of life imprisonment. (Id. ¶¶ 81–86.)

       In its sentencing memorandum, the government requested a life sentence—the maximum

term for Daniels’ criminal contempt of court conviction—based on the seriousness of Daniels’

offenses, deterrence, and protection of the public. In a sealed sentencing memorandum, Daniels

requested a within-Guidelines sentence, noting that he had not intended to harm anyone and had

not done so even though he had the opportunity, and that he voluntarily disclosed his possession

of the knives to the Marshals.        Daniels’ memorandum also emphasized the traumatic

circumstances of his childhood and his history of suffering physical abuse and mental-health

problems; that he had begun to repair his relationship with his family; and that since taking his

medications regularly, his outlook on life and desire for a life sentence had changed. The

memorandum also noted that Daniels had developed a plan to support himself once released

from prison. Daniels argued that due to his age—sixty-one—and the fact that he faced further

imprisonment for violating the conditions of his supervised release and parole, a within-

Guidelines sentence was warranted.

       At sentencing, defense counsel reiterated these arguments and spoke extensively about

Daniels’ history of mental illness and the physical and sexual abuse he suffered as a child. She

also highlighted that the nature of the crime was not severe—that is, Daniels had an opportunity

to harm his probation officer but did not and voluntarily surrendered himself to the Marshals.


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Defense counsel also noted that with respect to two prior convictions, Daniels had been

prosecuted for the same conduct in federal and in state court, leading to a higher scoring of his

Guidelines range.   Defense counsel further argued that due to his upcoming incarceration,

Daniels would receive medication regularly and therefore would be more stable upon his release.

She suggested any concerns about deterring future misconduct could be handled with a full term

of supervised release and enrolling Daniels in a reentry program. Defense counsel also stated

she had discussed with Daniels that if he wanted to return to prison after his release, he would

call her and his probation officer, rather than commit a crime and endanger others. Daniels then

addressed the court, stating that although he had committed crimes in the past in order to go back

to prison and get medication, he now had assistance from his family, including his two sisters.

       At the hearing, the government abandoned its request for a life sentence, but asked the

court to sentence Daniels to twice the high end of the Guidelines range in order to deter him from

future misconduct and to protect the public. The government argued that although Daniels had

not physically injured anyone, he had intended to cause harm. The government then noted that

Daniels had a long criminal history, his offenses had escalated, and the PSR included testimony

from doctors that he might follow through with one of his threats in order to get sent back to

prison. The government argued that the only way to prevent Daniels from committing another

crime and protect the public was to impose a lengthy prison sentence.

       The court then stated:

       I have, of course, reviewed your file, Mr. Daniels, and the presentence . . . report.
       I find the facts set out in the presentence report and used in the calculation of the
       offense level and the criminal history category are accurate and the calculation of
       the sentencing guideline range is accurate.

       The argument made on your behalf by Miss Price is not simply eloquent and in so
       many ways persuasive as it is often when she argues to this Court. It’s hard, as
       the Government has said, to quarrel with many of the substantive bases she has

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United States of America v. Timothy Daniels

       called the Court’s attention to, assuming that nobody is arguing about the fact that
       you had a lot of reasons throughout your life to behave in ways that you have
       behaved, including in criminal ways.

       That isn’t really the job of the Court to figure if somebody comes here, having
       pleaded guilty to crimes, to decide what it was that might have happened or might
       not have happened in that person’s life that would have forced the person or at
       least motivated the person to become criminally involved. If that were all that
       people in this position who get appointed to be federal district judges or state
       judges had to do, we’d have to spend a whole lot more time in one kind of
       professional -- one kind of a professional educational situation than we do and we
       still wouldn’t know what to do.

       I don’t disagree that there isn’t much we can do that has any hope of changing
       criminal behavior by sending people to prison. I think that’s been obvious from --
       pretty much from the beginning and more and more is being written about it, and
       to the extent that I have had the benefit of reading any of that, it’s simply
       emphasized to me the fact that there was no quick, easy answer, maybe no answer
       at all, present -- in the present -- in our present legal system for dealing with this.
       Should there be? Of course there should be, but there also should be a reaction
       from the people who are here to enforce the criminal laws of the United States in
       this case, a reaction that must be at least mindful of the law and mindful of the
       parts of the law which are somewhat helpful in making a decision with regard to
       how emphatically extreme or how harsh or how -- leave those words out, how
       strong the Court’s reaction should be to the extent that it has the power to react.

       I’ve certainly taken into consideration everything Miss Price has had to say and
       everything the Government has had to say and I have consulted with Miss Collins
       as the assigned probation officer before I came into the courtroom. I can’t find an
       easy way to come to a conclusion with regard to the quantum of what I have to do
       here today, but having said that:

       Pursuant to the Sentencing Reform Act of 1984 and considering the guidelines
       and factors contained in 18 U.S.C. 3553(a), I hereby commit the Defendant to the
       custody of the Bureau of Prisons for a term of 24 months on Count 1; 120 months
       on Count 2; and 120 months on Count 3, all these to run concurrently.

(PID 103–05.)

       The court recommended that Daniels be sent to an institution with mental-health services

and sentenced Daniels to a one-year term of supervised release on each count, to run

concurrently. The court also imposed special conditions of supervised release, including drug

testing, mental-health counseling if necessary, and psychiatric evaluation, admonished Daniels to

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United States of America v. Timothy Daniels

take any prescribed medication, and recommended the reentry program defense counsel had

requested.

        After apprising Daniels of his right to appeal, the court then stated, “I want to say a word

or two, but at this point, let me turn to the Government, what further would the Government like

the record to reflect.” (PID 107.) When the government responded, “Nothing, your Honor,” the

court then asked, “Miss Price, what would you like the record to reflect?” (Id.) Defense counsel

stated, “I would just object to the upward departure as not being justified within the factors.”

(Id.) The district court noted the objection, but did not address it further.

        Two days after the sentencing hearing, the court issued the required, non-public statement

of reasons for imposing a sentence outside the Guidelines. The court checked boxes indicating

that it imposed an above-Guidelines sentence due to the nature and circumstances of the offense

and history and characteristics of the defendant, and to protect the public. The district court

explained the sentence as follows:

        The defendant’s mental health condition is given serious consideration; however,
        the extent, repetitiveness and violent nature of his criminal history, even with the
        restrictions of supervision, demonstrates that he is a danger in the community. A
        sentence above the guideline range is warranted to protect the public from further
        crimes.

(R. 8-2 at 3.)

                                                  II.

        We review sentences for procedural and substantive reasonableness. United States v.

Freeman, 640 F.3d 180, 185 (6th Cir. 2011); see also Gall v. United States, 552 U.S. 38, 51

(2007). Daniels challenges only the procedural reasonableness of his sentence. Ordinarily, we

apply the abuse-of-discretion standard to a defendant’s claim that his sentence is procedurally

unreasonable.    Freeman, 640 F.3d at 185.        However, if the district court asks the parties


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United States of America v. Timothy Daniels

“whether there are any objections not previously raised, in compliance with the procedural rule

set forth in United States v. Bostic, 371 F.3d 865 (6th Cir.2004)[,] and if the relevant party does

not object,” we apply plain-error review to the procedural claims not raised in the district court.

Freeman, 640 F.3d at 186 (quoting United States v. Penson, 526 F.3d 331, 337 (6th Cir. 2008)).

       The parties dispute the applicable standard of review. Daniels contends that we should

review for abuse of discretion because the district court did not ask whether the parties had any

objections to the sentence announced, pursuant to Bostic. Although it need not use exact

language, “[a] district court can satisfy the requirements of the Bostic rule only by clearly asking

for objections to the sentence that have not been previously raised.” United States v. Clark, 469

F.3d 568, 570 (6th Cir. 2006). Here, the district court asked the parties what further they would

like the record to reflect. We have repeatedly held such language does not comply with the

Bostic requirement. See, e.g., United States v. Camacho-Arellano, 614 F.3d 244, 246–47 (6th

Cir. 2010) (applying abuse-of-discretion standard to procedural-reasonableness challenge where

court asked defense counsel only “is there anything else that you need me to address?”); United

States v. Gapinski, 561 F.3d 467, 473–74 (6th Cir. 2009) (finding “Anything else for the record,

Ms. Lasker?” did “not trigger plain-error review”); United States v. Thomas, 498 F.3d 336, 340

(6th Cir. 2007) (holding that “Do you have anything further for the record, Mr. Canady?” did not

satisfy Bostic requirement).

       The government urges us to review Daniels’ claims for plain error because defense

counsel raised a new objection when asked by the court if she would like the record to reflect

anything, demonstrating that she “recognized the opportunity for what it was” and had a

meaningful opportunity to object, thereby satisfying the purpose of the Bostic requirement.

(Gov. Br. 17.) Citing United States v. Herrera-Zuniga, 571 F.3d 568 (6th Cir. 2009), the


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government argues the Bostic requirement was meant to “serve practical ends,” and therefore “it

would be inappropriate to construe [its] requirements as [a] formal and inflexible protocol[].”

(Gov. Br. 16 (quoting Herrera-Zuniga, 771 F.3d at 580).)            However, even assuming that

counsel’s response to the district court’s question raised a new objection, Herrera-Zuniga is

inapposite.   At issue in Herrera-Zuniga was not whether the court asked a proper Bostic

question, but rather whether counsel had forfeited certain procedural claims by not objecting to

those errors in the district court. See Herrera-Zuniga, 571 F.3d at 578–80. Thus, although the

court in Herrera-Zuniga noted that the Bostic “rule was adopted entirely for practical reasons,”

id. at 580, it invoked these practical considerations in holding that defense counsel had not

forfeited certain procedural claims on appeal where there was “lingering confusion in this circuit

as to whether such claims are ‘procedural’ or ‘substantive’ challenges,” id. at 579, not in

assessing whether the court had given the parties a meaningful opportunity to object.

       Additionally, although “we employ [the] forfeiture rule as ‘a common-sense application

of the plain error doctrine’ and ‘with an eye to the realities of the facts and circumstances of each

sentencing proceeding,’” United States v. Morgan, 687 F.3d 688, 694 (6th Cir. 2012) (quoting

Herrera-Zuniga, 571 F.3d at 580), the practical considerations underlying the Bostic rule counsel

against applying plain-error review in this case. This court adopted the Bostic rule in part “[d]ue

to the difficulty of parsing a transcript to determine whether during a sentencing hearing . . . a

party had a meaningful opportunity to object.” Bostic, 371 F.3d at 872 n.6; see also United

States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc) (stating the Bostic rule was

adopted to bring clarity to the “opportunity-to-object” inquiry after “we wrestled with the

difficulty of ‘parsing a [sentencing] transcript to determine whether . . . a party had a meaningful

opportunity to object’”) (quoting Bostic, 371 F.3d at 873 n.6). Consequently, one goal of the


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United States of America v. Timothy Daniels

rule “is to help the court of appeals ascertain whether a party had an opportunity to make

additional objections,” and “[t]his end is served by asking the question, no matter what the party

answers.” United States v. Simmons, 587 F.3d 348, 356 (6th Cir. 2009) (citation omitted). Thus,

even in a situation where the parties may have had an opportunity to object when the district

court asked after imposing defendant’s sentence if counsel “want[ed] to renew [his] previously-

raised objections for the record,” we held that the court had not satisfied its obligation to give

“the parties a final opportunity to raise new objections,” and reviewed for abuse of discretion.

Freeman, 640 F.3d at 186.

       Here, despite the government’s contention that defense counsel raised a new objection in

response to the district court’s question, her response suggests she was merely reiterating her

prior substantive argument that the § 3553(a) factors did not justify a sentence outside the

Guidelines range. And her response can even be understood as challenging whether the court

gave an adequate justification for its departure supported by the § 3553 factors. This ambiguity

highlights why district courts must ask the Bostic question to make clear they are inviting both

procedural objections and new substantive objections. We therefore review the procedural

reasonableness of Daniels’ sentence for abuse of discretion.

                                               III.

       For a sentence to be procedurally reasonable, “we must ensure that the district court:

(1) properly calculated the applicable advisory Guidelines range; (2) considered the other

[18 U.S.C.] § 3553(a) factors as well as the parties’ arguments for a sentence outside the

Guidelines range; and (3) adequately articulated its reasoning for imposing the particular

sentence chosen, including any rejection of the parties’ arguments for an outside-Guidelines

sentence and any decision to deviate from the advisory Guidelines range.” United States v.


                                              -10-
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United States of America v. Timothy Daniels

Bolds, 511 F.3d 568, 581 (6th Cir. 2007).          Daniels contends his sentence is procedurally

unreasonable because the district court did not consider—and indeed did not believe it needed to

consider—certain § 3553(a) factors, and because the district court failed to state in open court its

reasons for imposing an above-Guidelines sentence.

                                                        A.

       When sentencing a defendant, the district court “‘must make an individualized

assessment based on the facts presented’ and upon a thorough consideration of all of the

§ 3553(a) factors.” Id. at 580 (quoting Gall, 552 U.S. at 50). The district court commits

procedural error where it fails to set forth a statement of reasons sufficient to satisfy the appellate

court that it has considered the parties’ arguments and has a reasoned basis for imposing a

particular sentence. Id.; see also Rita v. United States, 551 U.S. 338, 356 (2007). The court need

not “make specific findings related to each of the factors considered.” Bolds, 511 F.3d at 580

(quoting United States v. McClellan, 164 F.3d 308, 310 (6th Cir. 1999)). However, “when ‘a

defendant raises a particular argument in seeking a lower sentence, the record must reflect both

that the district judge considered the defendant’s argument and that the judge explained the basis

for rejecting it.’” United States v. Jones, 489 F.3d 243, 251 (6th Cir. 2007) (quoting United

States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006)); see also Simmons, 587 F.3d at 360 (“A

sentencing judge must explicitly consider factors that are raised by the defendant or that are

otherwise especially relevant to the case at bar.”)

       Daniels contends that the district court failed to consider his history and characteristics

and the nature of the offense pursuant to § 3553(a)(1). Further, he argues the district court’s

statement that it “isn’t really the job of the Court to figure if somebody comes here, having

pleaded guilty to crimes, to decide what it was that might have happened or might not have


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No. 15-1461
United States of America v. Timothy Daniels

happened in that person’s life that would have forced the person or at least motivated the person

to become criminally involved,” demonstrates it ignored his history and characteristics and

believed it did not need to consider them. (Daniels Br. 15.) We disagree.

       When read in its full context, the district court’s statement does not demonstrate that it

ignored Daniels’ history and characteristics or that it believed these factors were not relevant.

Rather, the court explained that in taking a defendant’s history and characteristics into account, a

court is not expected to decide which particular events in a defendant’s life caused or led to the

defendant’s criminal behavior.      This is different from a failure or refusal to consider a

defendant’s history or circumstances; it is simply an acknowledgement that even mental-health

professionals often find it difficult to pinpoint exactly why a person acts a certain way.

Additionally, before making the statement, the court indicated it had listened to and considered

Daniels’ arguments about his personal history, stating, “It’s hard, as the Government has said, to

quarrel with many of the substantive bases [defense counsel] has called the Court’s attention to,

. . . about the fact that you had a lot of reasons throughout your life to behave in ways that you

have behaved, including in criminal ways.” (PID 103.) The court also recommended a reentry

program, ordered mental-health treatment, and recommended Daniels be sent to the federal

medical facility at Rochester, as defense counsel specifically requested, further demonstrating

that it considered counsel’s arguments about Daniels’ history and characteristics. The district

court additionally noted that its sentence should reflect an appropriate response to Daniels’

violation of criminal laws, suggesting that it disagreed with defense counsel’s argument that the

crime was not that serious. Although the court might have said more, the record does not reflect

that the district court ignored or even failed to consider Daniels’ history and characteristics or the

nature of the offense.


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                                                       B.

       Daniels next argues that his sentence is procedurally unreasonable because the district

court failed to state at the sentencing hearing a specific reason for imposing of an above-

Guidelines sentence. When a district court imposes a sentence outside the Guidelines range, it

must state in open court the “specific reason” for the sentence, and must separately articulate its

reasons “with specificity” in a written statement pursuant to 28 U.S.C. § 994(w)(1)(B).2 18

U.S.C. § 3553(c)(2). For the sentence to be procedurally reasonable, the district court “must

consider the extent of the deviation and ensure that the justification is sufficiently compelling to

support the degree of the variance.” Gall, 552 U.S. at 50. “We have held accordingly that a

sentence is procedurally unreasonable when the district court ‘fail[s] to provide its specific

reasons for an upward departure or variance.’” Johnson, 640 F.3d at 206 (quoting United States

v. Blackie, 548 F.3d 395, 401 (6th Cir. 2008)). However, above-Guidelines sentences are not

presumptively unreasonable and although we “may consider the extent of the deviation, [we]

must give due deference to the district court’s decision that the § 3553(a) factors, on a whole,

justify the extent of the variance.” Gall, 552 U.S. at 51.

       Although district courts have discretion to determine “how much explanation is

necessary” in imposing a sentence, especially when that sentence falls within the advisory

Guidelines range, see United States v. Madden, 515 F.3d 601, 610 (6th Cir. 2008), in the present

case, the district court offered no reason at the sentencing hearing for its decision to impose an

       2
         Although the district court did not specify at the sentencing hearing whether the
sentence was a departure from the Guidelines or a variance, our review is the same for both.
United States v. Johnson, 640 F.3d 195, 205 (6th Cir. 2011) (citing United States v. Vowell,
516 F.3d 503, 510 (6th Cir. 2008)). And, to the extent Daniels argues this was error, “we have
not required that district courts carefully distinguish between whether the decision to deviate
from the advisory Guidelines range is based on a departure or variance.” Herrera-Zuniga,
571 F.3d at 586.


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above-Guidelines sentence. Indeed, after finding the Guidelines calculation in the PSR accurate,

the district court did not acknowledge that it was imposing an above-Guidelines sentence. The

district court’s explanation that it would not take into account only defendant’s background and

that the court needed to “react” to the crime do not explain the need to impose a sentence forty-

two months above the Guidelines range. Cf. United States v. Cousins, 469 F.3d 572, 578 (6th

Cir. 2006) (finding sentence procedurally unreasonable where, among other errors, “the district

judge failed to provide his reasoning for the variance or to explain how the two months that he

added to the maximum Guidelines sentence were related to his stated goal of protecting the

public, which might as easily be invoked to justify a variance of one day or ten years”),

abrogated on other grounds by Irizarry v. United States, 553 U.S. 708 (2008). Further, although

“the strength of the justification for a departure [need not] vary in proportion to the amount of

deviation from the Guidelines,” see Bolds, 511 F.3d at 581, “a major departure should be

supported by a more significant justification than a minor one,” Gall, 552 U.S. at 50. Here, the

court imposed a sentence significantly above the Guidelines range and its statement at the

sentencing hearing is insufficient to permit meaningful appellate review of that decision.

       The district court later explained its reasons for imposing an above-Guidelines sentence

in its written statement of reasons. Daniels does not argue that this explanation is insufficient;

rather, he contends it cannot cure the inadequate explanation provided in open court because the

statement of reasons is not public and because a district court may not correct an inadequate

explanation with an “after-the-fact written justification for the sentence.” (Daniels Br. 17.) The

government concedes that a later written justification cannot be used to correct a defect in the

court’s explanation at the sentencing hearing, but argues that the oral explanation was

sufficiently specific. (Gov. Br. 25.)


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       Section 3553(c)(2) requires a court to announce its specific reason for imposing an

outside-Guidelines sentence in both open court and in a written statement of reasons. In United

States v. Blackie, 548 F.3d 395 (6th Cir. 2008), where the district court did not refer to the

Guidelines range or explain its reason for varying from that range either at the time of sentencing

or in its written judgment, we held that “[t]he district court’s failure to comply with the

requirements of 18 U.S.C. § 3553(c)(2) constitutes error,” id. at 401–02, observing that the

§ 3553(c) requirements “are more than mere administrative burdens or meaningless formalities,

but rather assure that the court has properly calculated the applicable Guidelines range, and that

adequate explanation is provided to allow for meaningful appellate review and the perception of

a fair sentence,” id. at 401. The court also stressed that “the treatment of a § 3553(c) violation as

plain error will help maintain its requirements as mandatory, and not some formality that can be

ignored without consequence.” Id. at 403. Although the district court in Blackie had not

sufficiently explained its outside-Guidelines sentence either in open court or in the written order,

we find Blackie’s reasoning no less compelling here, as the statute plainly requires both.

       Moreover, our precedents strongly suggest a subsequent written justification may not

compensate for an inadequate explanation at sentencing. In United States v. Grams, 566 F.3d

683, 685–86 (6th Cir. 2009) (per curiam), we held that a written statement of reasons accepting

the PSR’s proposed Guidelines range did not cure the district court’s failure to adopt that range

in open court, even where “there seem[ed] to have been no disagreement among the parties as to

the correctness of the PSR’s suggested Guidelines range and findings of fact.” Although the

Grams court also found the written statement of reasons to be deficient, it specifically noted that

the district court should “especially” state its reasoning in open court “when, as here, the district

court sentences a defendant outside of the suggested range and provides further detail only in a


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statement of reasons sealed from public disclosure.” Id. at 686. Similarly, in United States v.

Dawe, 362 F. App’x 436, 439 (6th Cir. 2010), we held the district court abused its discretion

where it had not explained at the sentencing hearing its reasons for imposing a non-Guidelines

sentence, even though “[t]he court’s Sentencing Opinion listed [the reasons] in detail.” And in

the context of resentencing, we agreed with the Second Circuit’s holding that “upon

resentencing, providing only a written opinion violates the ‘open court’ requirement of

§ 3553(c),” and held that “upon general remand, after a sentence is vacated on direct appeal, the

district court must state the reasons underlying its sentence ‘in open court.’” United States v.

Garcia-Robles, 640 F.3d 159, 166–67 (6th Cir. 2011).

       In some cases, we have noted that an oral explanation at sentencing may “compensate for

[a] scant written explanation,” see United States v. Zobel, 696 F.3d 558, 567 (6th Cir. 2012)

(applying plain-error review), and have been reluctant to invalidate a sentence for failure to

provide an adequate written explanation alone, see United States v. Jennings, 407 F. App’x 20,

21 (6th Cir. 2011) (holding that inadequacy of district court’s reasons for sentence in written

order was harmless because court’s oral sentence allowed for meaningful appellate review);

United States v. Poynter, 344 F. App’x 171, 181 n.8 (6th Cir. 2009) (“While this court has

emphasized the importance of § 3553(c)(2), it has not vacated a sentence solely for failure to

meet the statute’s written order requirement.”).

       However, pronouncing a sentence in open court serves purposes that cannot be satisfied

by a written statement, and certainly not by a non-public one. The requirement that reasons for a

sentence be given in open court “‘ensures that a defendant at the time of sentencing will know

the grounds for an upward departure’ and is not satisfied by a ‘belated attempt . . . to correct [a]

failure to provide a specific statement at the sentencing hearing’ in a subsequently issued


                                               -16-
No. 15-1461
United States of America v. Timothy Daniels

opinion.” Garcia-Robles, 640 F.3d at 167 (quoting Dawe, 362 F. App’x at 439); see also Gall,

552 U.S. at 50 (stating that purpose of requirement that a court state its reasons for imposing a

sentence is not only to allow for meaningful appellate review, but also “to promote the

perception of fair sentencing”). In holding that where an oral and written sentence conflict, “the

oral sentence controls,” we have noted that “[t]he reason for the primacy of the oral sentence lies

in the fact that ‘[a] defendant is present only when being sentenced from the bench,’” and

“[b]ecause criminal punishment ‘affects the most fundamental human rights[,] . . . sentencing

should be conducted with the judge and defendant facing one another and not in secret.’”

Penson, 526 F.3d at 334 (quoting United States v. Villano, 816 F.2d 1448, 1452 (10th Cir. 1987)

(en banc)). Further, as we have observed several times, “[c]ompliance with § 3553(c) ‘is

important not only for the defendant, but also for the public to learn why the defendant received

a particular sentence.’” Garcia-Robles, 640 F.3d at 167 (quoting Blackie, 548 F.3d at 403).

       Here, the written statement of reasons is not public and therefore does nothing to promote

the perception of fair sentencing, and was issued outside Daniels’ presence, depriving him of an

adequate chance to face the court. Thus, although there may be situations where a sufficient

statement at a sentencing hearing may compensate for an inadequate written statement, the

circumstances do not support applying the reverse justification here. Consequently, we must

find the district court’s failure to state in open court its reason for imposing an above-Guidelines

sentence was procedurally unreasonable.

                                                IV.

       For these reasons, we VACATE Daniels’ sentence and REMAND for resentencing.




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