                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-3172
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                               v.
LAVELL DEAN,
                                           Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
          No. 03-CR-266—Rudolph T. Randa, Chief Judge.
                        ____________
         ARGUED JUNE 3, 2005—DECIDED JULY 7, 2005
                        ____________



 Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.
  POSNER, Circuit Judge. A federal jury convicted Lavell
Dean of being a felon in possession of a firearm, and the
district judge sentenced him to 120 months in prison. The
appeal, which challenges only the sentence, presents an
important issue—the role of 18 U.S.C. § 3553(a) in sentenc-
ing—presented, but left unresolved, by United States v.
Booker, 125 S. Ct. 738 (2005).
  The Presentence Investigation (PSI) report on Dean re-
counted the following facts. A squad car rolled up in front
of a house in Milwaukee that the police suspected of being
2                                               No. 04-3172

the site of illegal drug dealing. Two men, one of them later
identified as Dean, were standing in front of the house, and
when they saw the police car they scurried onto the en-
closed porch of the house. The policeman followed, and as
he approached he noticed that Dean seemed to place some-
thing on the floor of the porch and something else under a
book on a shelf; Dean then followed the other man into the
house. When the policeman reached the porch, he noticed on
the floor a loaded pistol (later discovered to have been
stolen), on the shelf ammunition for the pistol, and in a
flower pot near the gun crack cocaine in ziplock bags. Police
arrested Dean and the other man. A cellphone taken from
Dean rang, and an officer answered it and heard the caller
ask Dean for “two,” which the officer thought meant two
“rocks” of crack. More crack was found in the house, in a
bedroom into which Dean’s companion had run; but the
house did not belong to Dean and, so far as appears, he did
not live there.
  The officer who had answered the phone was prepared to
testify at the sentencing hearing about it and also about the
crack found in the house, but the judge decided not to take
testimony. Yet in computing Dean’s sentence under the
sentencing guidelines he upped the guidelines range four
levels on the basis of the government’s contention that Dean
not only was the possessor of the pistol found by the
policeman on the porch, but had possessed it “in connection
with another felony offense,” namely the sale of crack.
U.S.S.G. § 2K2.1(b)(5). The judge imposed a further two-
level increase on the basis of the government’s argument
that the pistol had been stolen. § 2K2.1(b)(4). The effect of
these two boosts was to increase the sentencing range to 135
to 168 months. But as the statutory maximum for Dean’s
offense was only 120 months, that was the sentence the
judge imposed.
No. 04-3172                                                  3

   The sentencing hearing was conducted after our decision
in Booker that the Supreme Court later affirmed, and so the
judge treated the guidelines as merely advisory. To decide
whether the guidelines sentence of 120 months (when the
sentence indicated by the guidelines exceeds the statutory
maximum, the statutory maximum becomes the guidelines
sentence, U.S.S.G. § 5G1.1(a)) was proper, the judge said
he’d have “to consider the gravity of the offense, the char-
acter of the Defendant, the need to protect the community
in this and any disposition,” and “the elements of deter-
rence, punishment, rehabilitation, retribution, all of those
factors that go toward assuring the safety of the community,
and that an appropriate sentence is rendered.” He pro-
ceeded to discuss those factors at some length, even to the
extent of noting that “defendant has three siblings, and he
has disappointed his sisters. His mother said he is a beau-
tiful person. Nice, easygoing guy, although he has a quick
temper. His two brothers are incarcerated at different
institutions I believe in this State for various offenses. And—
however, those [family members] that are not in prison seem
to be supportive of the Defendant.” The judge concluded
that “the guidelines are not far off on this sentence. Fairly
accurate.”
   The Supreme Court’s decision in Booker requires the
sentencing judge first to compute the guidelines sentence
just as he would have done before Booker, and then—be-
cause Booker demoted the guidelines from mandatory to
advisory status—to decide whether the guidelines sentence
is the correct sentence to give the particular defendant. The
decision to add four levels to Dean’s base offense level
because he possessed the gun in connection with illegal
drug dealing, and two additional levels because the gun
was stolen, was a stage-one determination that brought the
guidelines sentence up to the statutory maximum (without
4                                                No. 04-3172

those enhancements, the sentencing range would have been
only 77 to 96 months), and Dean is right that the determina-
tion was made incorrectly. Rule 32 of the Federal Rules of
Criminal Procedure, and in fact the guidelines themselves,
require the judge to rule on any disputed portion of a PSI
report, Fed. R. Crim. P. 32(i)(3)(B); U.S.S.G. § 6A1.3; United
States v. Sykes, 357 F.3d 672, 674-75 (7th Cir. 2004); United
States v. Cureton, 89 F.3d 469, 472-74 (7th Cir. 1996); United
States v. Ameline, 2005 WL 1291977, at *12 (9th Cir. June 1,
2005) (en banc), and the judge didn’t do that. He treated the
government’s factual contentions (that Dean possessed the
pistol in connection with drug dealing and that the pistol
was stolen) as “arguments” that he could accept or reject, or
factors to which he could give more or less weight, without
having to determine whether the factual underpinnings of
the government’s arguments were true. And so he thought
it unnecessary to hear testimony concerning the contested
issue of the cellphone call, even though the call was the
critical evidence that Dean was a drug dealer rather than
merely a customer—for remember that it was not his house
in which the drugs were found.
  The government argues that the judge didn’t have to take
testimony from the officer because Dean presented no evi-
dence that the PSI version of the call was incorrect. But his
denial that the officer’s version was correct would have
been evidence if given under oath at the sentencing hearing,
and it was bolstered by Dean’s claim, for which he might
have been able to present third-party evidence, that no one
“on the street” calls him by his real name. He had no
opportunity to present his own or third-party testimony
because, as we said, the judge didn’t think that Booker re-
quires a sentencing judge to resolve a factual dispute in
order to be permitted to give weight to a factual assertion.
No. 04-3172                                                  5

  So Dean must be resentenced. But we must also consider
his other complaint because it bears on the scope of the
resentencing hearing. The complaint is that the judge did
not do an adequate job of considering the sentencing factors
set forth in 18 U.S.C. § 3553(a). That statute reads, so far as
bears on the issue, as follows:
    (a) Factors to be considered in imposing a sen-
    tence.—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—
    (1) the nature and circumstances of the offense and the
    history and characteristics of the defendant;
    (2) the need for the sentence imposed—
        (A) to reflect the seriousness of the offense, to
        promote respect for the law, and to provide just
        punishment for the offense;
        (B) to afford adequate deterrence to criminal con-
        duct;
        (C) to protect the public from further crimes of the
        defendant; and
        (D) to provide the defendant with needed educa-
        tional or vocational training, medical care, or other
        correctional treatment in the most effective man-
        ner . . . .
    (3) the kinds of sentences available;
                          *    *   *
    (6) the need to avoid unwarranted sentence disparities
    among defendants with similar records who have been
    found guilty of similar conduct; and
6                                                 No. 04-3172

    (7) the need to provide restitution to any victims of the
    offense.
  Until Booker, the uses that a sentencing judge could make
of the factors listed in section 3553(a) were severely cir-
cumscribed by the next subsection in order to preserve the
mandatory character of the guidelines. 18 U.S.C. § 3553(b).
But now that they are advisory, while section 3553(a) re-
mains unchanged, judges will have to consider the factors
that the section tells them to consider. “Section 3553(a) re-
mains in effect, and sets forth numerous factors that guide
sentencing.” United States v. Booker, supra, 125 S. Ct. at 766;
see also id. at 764-65. “Booker suggests that the sentencing
factors articulated in § 3553(a), which the mandatory
application of the Guidelines made dormant, have a new
vitality in channeling the exercise of sentencing discretion.”
United States v. Trujillo-Terrazas, 405 F.3d 814, 819 (10th Cir.
2005).
  Dean insists that it is the duty of the sentencing judge,
in every case and whether or not the defendant invokes any
of the factors mentioned in section 3553(a), to make an
explicit, articulated analysis of all of them a part of the sen-
tencing process. This, he says, Chief Judge Randa failed to
do. Dean also faults the judge for having listed “retribution”
as a factor to be considered in sentencing. Dean points out
that section 3553(a) doesn’t mention retribution. That is true,
but he has overlooked the reference in the section to “just
punishment”; an influential body of thought teaches that
retributive justice is justice in criminal punishments. E.g.,
Michael Tonry, “Sentencing: What’s at Stake for the States?:
Obsolescence and Immanence in Penal Theory and Policy,”
105 Colum. L. Rev. 1233, 1240 (2005); Michele Cotton, “Back
with a Vengeance: The Resilience of Retribution as an
Articulated Purpose of Criminal Punishment,” 37 Am. Crim.
L. Rev. 1313, 1361-62 (2000).
No. 04-3172                                                   7

  Mention of “just punishment” brings to the surface the
practical objection to Dean’s submission. If in every federal
criminal case the sentencing judge must touch all the bases
in section 3553(a) even if not asked to do so by either side,
the Booker decision will have unwittingly succeeded in
doubling the amount of work involved in sentencing. The
judge must, as we know, compute the guidelines sentence,
just as he had to do before Booker. But in addition, according
to Dean, the judge must state on the record how each of the
factors in section 3553(a) figured in his deciding what
sentence to give the defendant. It is not at all helpful that
many of the factors are vague and, worse perhaps, hope-
lessly open-ended. How far, for example, is the judge to
delve into the “characteristics” of the defendant? How far is
he to go in investigating the possibility of “unwarranted
sentencing disparities”? Must he elaborate upon the mean-
ing of “promote respect for law”? And must he discuss all
the rival theories of “just punishment” (retributive, deter-
rent, rehabilitative, incapacitative)?
  Section 3553(a), unlike the guidelines themselves after
Booker, is mandatory. United States v. Booker, supra, 125 S. Ct.
at 764-65. The sentencing judge cannot, after considering the
factors listed in that statute, import his own philosophy of
sentencing if it is inconsistent with them. And therefore he
can, as a matter of prudence, unbidden by either party, do
what Dean wants him to do—write a comprehensive essay
applying the full panoply of penological theories and
considerations, which is to say everything invoked or
evoked by section 3553(a)—to the case before him.
  But that is not required; like Chief Judge Randa in
the present case, the sentencing judge can discuss the ap-
plication of the statutory factors to the defendant not in
checklist fashion but instead in the form of an adequate
statement of the judge’s reasons, consistent with section
8                                                 No. 04-3172

3553(a), for thinking the sentence that he has selected is in-
deed appropriate for the particular defendant. United States
v. Hadash, 2005 WL 1250331, at *3 (8th Cir. May 27, 2005);
United States v. Mares, 402 F.3d 511, 518-20 (5th Cir. 2005).
“Judges need not rehearse on the record all of the consider-
ations that 18 U.S.C. § 3553(a) lists; it is enough to calculate
the range accurately and explain why (if the sentence lies
outside it) this defendant deserves more or less.”
United States v. George, 403 F.3d 470, 472-73 (7th Cir. 2005).
This shortcut is justified by the indeterminate and intermi-
nable character of inquiry into the meaning and application
of each of the “philosophical” concepts in which
section 3553(a) abounds.
  However, the farther the judge’s sentence departs from
the guidelines sentence (in either direction—that of greater
severity, or that of greater lenity), the more compelling the
justification based on factors in section 3553(a) that the
judge must offer in order to enable the court of appeals to
assess the reasonableness of the sentence imposed. (Cf.
United States v. Dalton, 404 F.3d 1029, 1033-34 (8th Cir. 2005),
reversing a 60-month sentence when the minimum guide-
lines sentence was four times as long.) But although the
judge must therefore articulate the factors that determined
the sentence that he has decided to impose, his duty “to
consider” the statutory factors is not a duty to make find-
ings, as we have held in dealing with the directive of the
Victim and Witness Protection Act that the sentencing judge
“shall consider” specified factors in deciding whether to
order a criminal defendant to pay restitution. 18 U.S.C.
§ 3663(a)(1)(B)(i). Not only are findings not required (with
a qualification noted below), but “lack of findings coupled
with an award of full restitution implies that the defendant
has failed to carry this burden.” United States v. Ahmad, 2
F.3d 245, 247 (7th Cir. 1993).
No. 04-3172                                                   9

   Explicit factfinding is required, however, if, though only
if, contested facts are material to the judge’s sentencing
decision. A judge who thinks that a particular contested
characteristic of a defendant may be decisive to the choice
of sentence, such as the defendant’s mental or emotional
state, must resolve the factual issue in the usual way, that is,
by making findings on the basis of evidence, just as he
would have to do in applying the sentencing guidelines
if, as in the present case, the calculation of the guidelines
sentence depends on the resolution of a factual dispute.
  This does not mean trial by jury, proof beyond a reason-
able doubt, consideration limited to evidence that satisfies
the requirements of admissibility that are found in the
Federal Rules of Evidence, or any other such formalities.
U.S.S.G. § 6A1.3; United States v. Polson, 285 F.3d 563, 566-67
(7th Cir. 2002); United States v. Kroledge, 201 F.3d 900, 908-09
(7th Cir. 2000); United States v. Hough, 276 F.3d 884, 891 (6th
Cir. 2002); United States v. Atkins, 250 F.3d 1203, 1212-13 (8th
Cir. 2001); see also 18 U.S.C. § 3661. Only when factual
determinations require a particular sentence does the Sixth
Amendment come into play, imposing formalities on factual
determinations (other than criminal history) that influence
sentence length. United States v. Booker, supra, 125 S. Ct. at
750; see also Shepard v. United States, 125 S. Ct. 1254, 1262-63
(2005); United States v. Carter, 2005 WL 1367195, at *9 (7th
Cir. June 10, 2005); United States v. Iskander, 407 F.3d 232,
242-43 (4th Cir. 2005); United States v. Mashek, 406 F.3d 1012,
1014-15 (8th Cir. 2005); United States v. Coles, 403 F.3d 764,
766 (D.C. Cir. 2005). With the guidelines now merely ad-
visory, factfindings that determine the guidelines sentence
do not determine the actual sentence, because the sentenc-
ing judge is not required to impose the guidelines sentence;
and so the Sixth Amendment is not in play.
10                                                 No. 04-3172

   Our focus thus far has been on cases in which the sentenc-
ing judge is minded to impose a sentence outside the
guidelines range. Recognizing that the guidelines are
promulgated and continually revised by an agency staffed
by experts (the Sentencing Commission), the court in
United States v. Mares, supra, 402 F.3d at 519, said that “if the
sentencing judge exercises her discretion to impose a
sentence within a properly calculated Guideline range, in
our reasonableness review we will infer that the judge has
considered all the factors for a fair sentence set forth in the
Guidelines . . . . When the judge exercises her discretion to
impose a sentence within the Guideline range and states for
the record that she is doing so, little explanation is re-
quired.” But the defendant must be given an opportunity to
draw the judge’s attention to any factor listed in section
3553(a) that might warrant a sentence different from the
guidelines sentence, for it is possible for such a variant
sentence to be reasonable and thus within the sentencing
judge’s discretion under the new regime in which the guide-
lines, being advisory, can be trumped by section 3553(a),
which as we have stressed is mandatory. Simon v.
United States, 361 F. Supp. 2d 35, 39-41 (E.D.N.Y. 2005);
United States v. Kelley, 355 F. Supp. 2d 1031, 1035-37 (D. Neb.
2005); United States v. Ranum, 353 F. Supp. 2d 984, 985-86
(E.D. Wis. 2005).
  The judgment is vacated and the case remanded to the
district court for further proceedings concerning the two
enhancements, and for resentencing on the basis of what
those proceedings yield.
No. 04-3172                                            11

A true Copy:
       Teste:
                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—7-7-05
