                              RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit Rule 206
                                           File Name: 07a0042p.06

                      UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                   X
                              Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                    -
                                                    -
                                                    -
                                                        No. 05-4425
         v.
                                                    ,
                                                     >
 CONRAD VERNON SMITH,                               -
                           Defendant-Appellant. -
                                                   N
                    Appeal from the United States District Court
                   for the Southern District of Ohio at Columbus.
                  No. 05-00115—George C. Smith, District Judge.
                                        Argued: October 27, 2006
                                 Decided and Filed: January 26, 2007
         Before: KENNEDY and GIBBONS, Circuit Judges; ALDRICH, District Judge.*
                                           _________________
                                                COUNSEL
ARGUED: Keith A. Yeazel, Columbus, Ohio, for Appellant. Benjamin C. Glassman, ASSISTANT
UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF: Keith A. Yeazel,
Columbus, Ohio, for Appellant. Benjamin C. Glassman, ASSISTANT UNITED STATES
ATTORNEY, Cincinnati, Ohio, for Appellee.
     KENNEDY, J., delivered the opinion of the court, in which ALDRICH, D. J., joined.
GIBBONS, J. (pp. 7-8), delivered a separate concurring opinion.
                                           _________________
                                               OPINION
                                           _________________
        KENNEDY, Circuit Judge. Defendant Conrad Vernon Smith appeals his 57-month sentence,
asserting that the sentence is unreasonable because the district judge, in calculating the sentence,
(1) engaged in impermissible fact-finding and (2) failed to follow the methodology set forth in
U.S.S.G § 4A1.3, which resulted in a sentence that was greater than was necessary to comply with
the factors set forth in 18 U.S.C. § 3553(a). For the reasons set forth below we AFFIRM the
sentence of the district court.


        *
          The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio, sitting by
designation.


                                                      1
No. 05-4425           United States v. Smith                                                    Page 2


                                          BACKGROUND
        Defendant Conrad Vernon Smith (“Smith”) was pulled over by state police in Columbus,
Ohio. When officers approached the vehicle he placed his hands outside the car and shouted, “I am
not going to lie; I don’t have a driver’s license and there is a gun in the car.” That gun was a loaded,
sawed-off shotgun resting on the driver’s side floorboard. The weapon was unregistered and the
serial number had been obliterated. Smith was already a convicted felon.
        A grand jury for the Southern District of Ohio returned a three-count indictment against
Smith for (1) possession of an unregistered firearm, (2) possession of a firearm with an obliterated
serial number, and (3) possession of a firearm as a convicted felon. Smith pleaded guilty to the third
count in exchange for dismissal of counts one and two.
        A presentence investigation report was prepared, which determined that Smith had an offense
level of 12 and a criminal history category (CHC) of VI. It noted that the guideline range was 30-37
months. The parties did not object to the report.
       The district court notified Smith that it was considering an upward departure based on
U.S.S.G. § 4A1.3 because of his criminal history. Smith objected to an upward departure and
requested a downward departure. At a sentencing hearing, the court overruled Smith’s objections
and departed upward from the sentencing guidelines recommendation to offense level 16, CHC VI.
The new advisory range, the court found, was 46-57 months imprisonment. The court thus imposed
a sentence of 57 months. This timely appeal followed.
                                             ANALYSIS
I. The District Court’s Findings of Fact
        Smith argues that the district court exceeded its fact-finding prerogative by making
“comparative and qualitative” findings; for example, Smith contests its finding that his criminal
history was “egregious.” Appellant’s Br. at 12. He cites United States v. Booker, 543 U.S. 220, 244
(2005), and argues that “the nature of the conviction[,] beyond the mere fact of the conviction,” must
either be pleaded by the defendant or proved beyond a reasonable doubt.
        We have previously noted that, “[c]onclusions about . . . prior convictions [are] treated the
same before [and] after Booker . . ..” United States v. Richardson, 437 F.3d 550, 555 (6th Cir.
2006). Our analysis of the sentencing treatment of prior convictions begins with Almendarez-Torres
v. United States, 523 U.S. 224 (1998), in which the Supreme Court distinguished between sentencing
factors and separate criminal offenses. See United States v. Burgin, 388 F.3d 177, 183 (6th Cir.
2004); see also United States v. Hollingsworth, 414 F.3d 621, 623 (6th Cir. 2005) (following Burgin
post-Booker). “The Supreme Court noted, among other things, that ‘the relevant statutory subject
matter is recidivism,’ and recidivism ‘- the prior commission of a serious crime - is as typical a
sentencing factor as one might imagine.’” Burgin, 388 F.3d at 183 (internal citations omitted).
         After Almendarez-Torres, in Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held
“other than the fact of a prior criminal conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Id. at 490. As Smith properly notes in his brief, after Apprendi, the Almendarez-
Torres exception is narrow. Appellant’s Br. at 11. It is, however, wide enough to encompass the
district court’s finding here.
        In Burgin, the district court found that “prior felonies were committed on different
occasions.” 388 F.3d at 186. The “different occasions” portion of that finding put the defendant
under the reaches of the Armed Career Criminal Act, 18 U.S.C. § 924(e). As such, his sentence was
No. 05-4425           United States v. Smith                                                   Page 3


significantly enhanced. We concluded “that the ‘different occasions’ requirement . . . sufficiently
comes within the exception in Apprendi for a prior conviction. . . . The ‘different occasions’
language involves the issue of recidivism, ‘a traditional, if not the most traditional, basis for a
sentencing court’s increasing an offender’s sentence.’” Burgin, 388 at 186 (citing Apprendi, 530
U.S. at 488).
         Post-Booker, we continue to rely on Burgin. In United States v. Hollingsworth, 414 F.3d at
623, Joshua Hollingsworth challenged the district court’s finding that one of his prior convictions
was for a “crime of violence,” which increased his sentence. We rejected his argument and
expanded our holding in Burgin. “[T]he violent nature of a previous offense ‘is not a fact that
pertains to the commission of the offense for which the defendant is presently charged,’ but rather
a fact that pertains to a previous offense.” Id. at 623 (citing Burgin, 388 F.3d at 186).
        Even more recently, we again found that a district judge’s determination that a previous
crime was a crime of violence was permissible under the Sixth Amendment post-Booker. In United
States v. Alford, 436 F.3d 677, 681 (6th Cir. 2006), we explained that, “[a]s in Burgin, the district
court in this instance was attempting to determine the scope of Alford’s recidivism, that is, whether
he was responsible for multiple instances of crimes of violence or whether this was only one single,
isolated incident.”
        In the present case, the district judge examined Smith’s criminal history and was within his
prerogative to consider it “extensive and egregious” and to consider these characteristics in
determining whether to deviate from the guidelines range. He considered the history in an attempt
to discern the “likelihood that [Smith’s] criminal lifestyle will continue.” Dist. Ct. Op. and Order
at 6. As such, the determination falls under a “traditional, if not the most traditional, basis for a
sentencing court’s increasing an offender’s sentence.” Apprendi, 530 U.S. at 488.
        Furthermore, the district court’s finding did not “increase[] the penalty for a crime beyond
the prescribed statutory maximum . . ..” Apprendi, 530 U.S. at 490. The court’s finding increased
the recommended, advisory range, but that range was still below the statutory maximum penalty.
The district court did not act impermissibly.
II. Reasonableness of the District Court’s Sentence
        We review sentences for reasonableness. United States v. Collington, 461 F.3d 805, 807 (6th
Cir. 2006). In doing so, we follow a well-trodden path. After United States v. Booker, 543 U.S.
220, (2005), district courts treat the Federal Sentencing Guidelines as advisory rather than
mandatory. However, as a court of appeal, we still defer to these guidelines since they reflect
“nearly two decades of considered judgment about the range of appropriate sentences,” United
States v. Buchanan, 449 F.3d 731, 736 (6th Cir. 2006) (Sutton, J., concurring), by attaching a
rebuttable presumption to a sentence within the Guidelines recommended range. United States v.
Williams, 436 F.3d 706, 708 (6th Cir. 2006). That presumption, however, does not imply a
presumption against a sentence outside the range. Collington, 461 F.3d at 808. Even so, we give
sentences outside the range a closer look. “And, like every court of appeals to consider the question,
we take the view that when the district court independently chooses to vary from the advisory
guidelines range (whether above or below it), we apply a form of proportionality review:” the
greater the variance from the range, the more compelling the justification for variance must be.
United States v. Davis, 458 F.3d 491, 496 (6th Cir. 2006). Therefore, when a sentence varies
significantly from the guidelines range, “extraordinary circumstances” must “justify the full amount
of the variance.” Id. at 496-97.
       The district court below found that the offense level, in light of Smith’s criminal history, was
inadequate. Smith contests this upward departure. In this case, therefore, we approach the question
No. 05-4425           United States v. Smith                                                      Page 4


of reasonableness in two ways. First, if we find that the district court correctly computed the
guideline range in its upward departure in light of Smith’s “extensive and egregious” criminal
history, we will treat the sentence as within the guidelines range and therefore presume it was
reasonable. We must still subject the sentence to review, but as noted above, that review is less
exacting. If, however, we find that the district court was not justified in its upward departure, and
that the advisory range was therefore not properly calculated, we will not attach a presumption of
reasonableness to it and approach the levied sentence with more skepticism.
       This brief analysis should reveal an obvious conclusion: our review of a district court’s
upward departure to a higher offense level should mirror our analysis of its variance from the
guidelines range. Since a district court can employ either and arrive at the same result, we should
review both methods with the same scrutiny.
       Prior to Booker, we employed a three-step approach in our review of upward departures
under U.S.S.G. § 4A1.3:
       The first step is a question of law regarding whether the circumstances of the case
       are sufficiently unusual to justify departure. Step two involves a determination as
       to whether there is an actual factual basis justifying the departure. Here, the standard
       is whether the determination made involves clear error. ... The third step is that, once
       the Court has assured itself that the sentencing court considered circumstances
       appropriate to the departure, the degree of departure must be measured by a standard
       of reasonableness on appeal.
United States v. Joan, 883 F.2d 491, 494-96 (6th Cir. 1989). The Seventh Circuit has employed its
similar pre-Booker § 4A1.3 case law in attempting to determine whether a sentence was reasonable.
United States v. Castro-Juarez, 425 F.3d 430 (7th Cir. 2005). However, it did so “with the caveat
that the question before [it] is ultimately the reasonableness of the sentence the district court
imposed, not the court’s application of a guideline authorizing an upward departure.” Id. at 434.
Like the litigants before our sister circuit in Castro-Juarez, both parties before us have provided us
with their analysis of the case under our § 4A1.3 jurisprudence.
        Smith concedes that the first two steps are met; that is, his criminal history exceeded that
anticipated by the guidelines range and the convictions making up that history did, in fact, occur.
Appellant’s Br. at 17. He contests the last step, arguing that the upward departure was unreasonable.
He would prefer an approach more mechanical than that the district court took. CHCs III, IV, and
V each have a range of 3 criminal history points. That is, CHC III ranges from 4-6 points, CHC IV
from 7-9, and CHC V from 10-12. CHC VI consists of points 13 and greater. Smith would have
us continue this incremental method by adding an offense level for every three points in excess of
12. That is, add an offense level at 16 criminal history points, 19, 22 and so on.
       Such a mechanistic approach, however, seems to us to be antithetical to our post-Booker
approach to reviewing sentences, which emphasizes flexibility and discretion of district judges. In
Collington, for example, we stated, “There is no mathematical percentage or formula that defines
what reasonableness is. Appellate review simply cannot be reduced to such cold calculations. It is
those very calculations that Booker and its progeny attempted to remove from the federal sentencing
process.” Id. Therefore, it is here that we will incorporate our post-Booker jurisprudence to our
review of upward departures under § 4A1.3.
        “We have now split our reasonableness review into two inquiries: procedural reasonableness
and substantive reasonableness.” Collington, 461 F.3d at 808. Procedural reasonableness requires
a sentencing judge to “consider” the factors outlined in 18 U.S.C. § 3553(a). Id. at 7. The purpose
of procedural reasonableness is to enable appellate review, so we require the district judge to explain
No. 05-4425           United States v. Smith                                                    Page 5


the factors that justify the sentence imposed. United States v. James Williams, 432 F.3d 621, 623
(6th Cir. 2005). However, this standard does not require that a judge be an automaton, listing
inapposite factors by rote. It is enough to explain why this defendant is different from most.
       A sentence will fail to be substantively reasonable if “the district court ‘select[s] the
sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent
§ 3553(a) factors or giv[es] an unreasonable amount of weight to any pertinent factor.’” Collington,
461 F.3d at 808 (citing United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005)).
        Again, we note that the standards for determining whether an upward departure to another
offense level is appropriate are similar to those standards we use to judge the procedural and
substantive reasonableness of a variance from any guidelines range. Procedural reasonableness can
be equated to the first two steps outlined in Joan. First, a district court must explain the reasons
justifying a departure and, second, evidence of those reasons must appear in the record. Such
explanation allows meaningful appellate review. Third, substantive reasonableness - or what Joan
called simply “reasonableness” - must govern the sentence imposed. The punishment must fit the
crime.
         In this case, the district court not only explained the reasons it was departing upward but it
also provided an analysis of the § 3553(a) factors. It examined each of the prior convictions on
Smith’s record. It concluded, based on this review, that Smith “has a history of drug abuse,
possessing dangerous firearms, and acts of violence against women.” Dist. Ct. Op. at 5. It explained
that it chose the sentence it did because Smith “has shown utter disregard for the law throughout the
course of his life.” Id. at 7. It recognized that the sentence would keep Smith off the street and that
that alone was a benefit to the safety of the community. In considering all of the above, the court
recognized Smith’s objections and provided explanation of why it was rejecting them. Further, it
provided a section explaining why the downward departure Smith requested was not granted.
         We do not require a rote recitation of § 3553(a) factors but rather an explanation of why the
district court chose the sentence it did. The court below examined many of the § 3553(a) factors and
attached to them a not unreasonable weight. We conclude that it was within its discretion to impose
the sentence it did.
III. Sufficiency and Necessity of the Sentence
        Finally, Smith argues that the sentence is likely to create unwarranted disparities because he
is not eligible to participate in the Residential Drug Treatment Program (RDAP). In 18 U.S.C.
§ 3621(e)(2)(B), Congress gave the Bureau of Prisons (BOP) the authority to reduce prisoners’
sentences by up to 1-year if and when they completed RDAP. However, Congress excepted violent
criminals. According to Smith, the BOP expanded the legislative disqualification for violent
criminals to include felons in possession of a firearm. Essentially, Smith argues that his ineligibility
puts him on unequal footing with regard to other nonviolent criminals.
        We reject this argument for the same reasons as the court below: the Congressional incentive
was (a) not automatic and (b) not forward looking. A defendant’s eligibility for the RDAP is
contingent on approval by the BOP. Even if a defendant completes the program, the BOP does not
have to reduce the sentence. 18 U.S.C. § 3621(e)(2)(B). Therefore, sentence disparity of the type
Smith envisions is inherent in the legislative program. Some prisoners will get the reduction, while
others, similarly situated before entering prison, will not. We cannot therefore conclude that the
disparity is unwarranted.
       In addition, the reduction of the prisoner’s sentence is also structured as an incentive. To
reduce the sentence before the defendant even attempts to enroll, based on the assumption that he
would both enroll in and complete the program if allowed, provides no incentive to obtain treatment.
No. 05-4425        United States v. Smith                                            Page 6


                                     CONCLUSION
      For the foregoing reasons, the sentence imposed by the district court is AFFIRMED.
No. 05-4425               United States v. Smith                                                                 Page 7


                                           ______________________
                                              CONCURRENCE
                                           ______________________
        JULIA SMITH GIBBONS, Circuit Judge, concurring. I concur in the majority opinion’s
disposition of this case but write separately to make two points.
         First, in my view, Part I of the opinion treats defendant’s plainly meritless argument that the
district court engaged in inappropriate fact-finding as one worthy of substantial analysis and thus
glosses over the exact nature of the argument. Defendant’s argument is that the district court’s
comments that his criminal history was “extensive and egregious” and that there was a “likelihood
that defendant’s criminal lifestyle will continue” amounted to improper judicial fact-finding because
the court went beyond merely finding the existence of defendant’s criminal convictions. While I find
it difficult to accept defendant’s characterization of the district court’s observations as findings of
fact,1 I will assume that he is correct for purposes of addressing this issue. The problem with
defendant’s argument is that the district court’s ability to find facts post-Booker is not limited to a
determination of prior convictions, and the district court’s going beyond the fact of conviction poses
no Sixth Amendment problem whatever in an advisory guideline system. Booker, 543 U.S. at 233;
see also United States v. Stone, 432 F.3d 651, 654-55 (6th Cir. 2005) (rejecting defendants’ argument
that the district court was without power to make factual determinations regarding the amount of tax
loss or whether defendants obstructed justice in calculating the recommended guidelines range for
defendants’ convictions on charges of conspiracy to commit tax fraud and tax evasion and noting that
Booker did not eliminate judicial fact-finding but rather freed district courts to sentence defendants
outside of the now advisory guidelines range). Thus, the easy answer to defendant’s argument is that
if the district court found facts other than prior convictions, it was clearly permissible to do so. We
need not work to place the court’s comments within the definition of prior conviction of Almendarez-
Torres, as the majority opinion does.2
         Second, while I have no difficulty with the general analysis in Part II of the opinion, it fails
to state explicitly the ultimate impact of its approach. We deal here with an upward departure under
§ 4A1.3, which relates to the inadequacy of a defendant’s criminal history category. The advice to
district courts in that policy statement section–where, as in this case, a defendant’s criminal history
category is VI–is to adjust the guideline range by moving down the sentencing table in Criminal
History Category VI. The result will be a new advisory guideline range, within which the defendant
may be sentenced. By contrast, the policy statements accompanying departures under § 5, Part K,
of the advisory guidelines contemplate a process for departing that does not result in a new advisory
range but rather a sentence outside the range. Even in the § 5, Part K, departure situation, however,
courts have often used the steps of the sentencing table as a guide and have explained the departure
in terms of a particular number of steps. Yet, the processes as conceptualized in the guideline policy
statements do differ.

         1
          In my view, these observations are part of the district court’s legal conclusion to apply § 4A1.3. The standard
for upward departure under that section requires the court to conclude that the defendant’s criminal history category
substantially under-represents the seriousness of his criminal history or the likelihood that he will commit other crimes.
In its comments, the district court was clearly concluding that both prongs of the standard were met. The comment about
recidivism is an explicit determination as to the latter prong, while the “extensive and egregious” remark is a prelude
to and a part of the determination that the initial prong was met.
         2
           The majority may well be correct that the district court could make these findings even if restricted by
Almendarez-Torres. The government, citing Alford, 436 F.3d at 681, frames the principle in the following way: “[I]ssues
implicit in the facts of other convictions ... need not be admitted by the defendant or proved to the jury, even under a
mandatory system.” (Appellee’s Br. at 10.)
No. 05-4425               United States v. Smith                                                              Page 8


         The majority opinion concludes that the pre-Booker standard first articulated in this circuit
in Joan should continue to guide our analysis of upward departures3 under § 4A1.3. Its reasoning
in doing so is sound, for the utilization of the Joan standard is analogous to our continued use of pre-
Booker standards to review guideline calculation decisions in other contexts. See, e.g., United States
v. Davidson, 409 F.3d 304, 310 (6th Cir. 2005). But using the Joan approach introduces a wrinkle
into the guideline calculation process under § 4A1.3 because the third step of the analysis required
by Joan involves reasonableness review. The majority deals with the wrinkle by importing our post-
Booker case law and standards into the Joan analysis. The effect of application of the framework
created by the majority is this: to the extent a district court departs from a particular guideline range
to arrive at a new range based on inadequacy of the criminal history category, that departure is not
entitled to a presumption of reasonableness but is subject to full reasonableness review. The absence
of any presumption of reasonableness for the extent of departure makes sense given the fact that a
§ 4A1.3 departure involves an exercise of discretion that is somewhat akin to departures under § 5,
Part K. The district court’s discretion is limited, however, by the language of § 4A1.3, and similarly,
our reasonableness inquiry must focus on the degree of the departure and the extent to which the
district court’s chosen departure range is reasonable in light of the considerations relevant to § 4A1.3
departures.
        Finally, it seems to me that once the departure under § 4A1.3 has been subject to Joan
reasonableness review and the guideline range has otherwise been determined to be calculated
accurately, the presumption of reasonableness should then attach to a sentence within the particular
advisory guideline range that the court utilizes in sentencing a defendant. The majority opinion omits
this step, but the omission makes no difference in the outcome in this case. Just as the departure to
a higher guideline range was reasonable, so was the ultimate sentence, whether or not it was
presumptively so. The omission does, however, obscure the fact that post-Booker reasonableness
review should occur after the guideline range, with its included departure, has been determined. At
this point, we look to consideration of § 3553(a) factors and apply the other principles that are part
of post-Booker reasonableness review.




         3
           The majority opinion at times uses the word “variance,” which has been used both precisely and imprecisely
post-Booker to refer to certain departures from the advisory guideline range. When used precisely, the term “variance”
refers to departures based on § 3553(a) factors rather than departures under § 5, Part K, of the guidelines. See United
States v. Cousins, 469 F.3d 572, 577 (6th Cir. 2006). The departure here is under § 4A1.3 and is the only departure of
its type mentioned in the guidelines–i.e., the only departure in which the court applies discretion under a given legal
standard to arrive at a new range. The policy statement language uses the word “departure.” We are thus dealing with
a “variance” only if the word is used in a very general sense.
