                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-22-2008

USA v. Langford
Precedential or Non-Precedential: Precedential

Docket No. 06-2774




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                                       PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                     No. 06-2774


          UNITED STATES OF AMERICA

                           v.

                SHAWN LANGFORD,
                        Appellant


      Appeal from the United States District Court
              for the Western District of PA
           (D.C. Criminal No. 05-cr-00151-2)
      District Judge: Honorable Gary L. Lancaster


              Argued November 2, 2007

Before: RENDELL, WEIS and NYGAARD, Circuit Judges.

               (Filed: February 22, 2008)
Renee Pietropaolo [ARGUED]
Kimberly R. Brunson
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
   Counsel for Appellant

Robert L. Eberhardt
Rebecca R. Haywood [ARGUED]
Office of the U.S. Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
   Counsel for Appellee


                 OPINION OF THE COURT


RENDELL, Circuit Judge.
       Shawn Langford appeals the sentence imposed after he
pled guilty to bank robbery in violation of 18 U.S.C. § 2113(a),
armed bank robbery in violation of 18 U.S.C. § 2113(d), and
carrying and brandishing a firearm during a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). Langford was
sentenced to 46 months’ imprisonment for Counts One and
Two, to be served concurrently, and a mandatory term of 84
months’ imprisonment for Count Three, to be served
consecutively, for a total of 130 months’ imprisonment.

                               2
Langford argues that the District Court improperly calculated his
criminal history score and consequently chose an erroneous
Sentencing Guidelines range as the first step in the sentencing
process, and that he should therefore be resentenced. The
government urges that the error is harmless because the
applicable Guidelines range overlaps with the correct range.
The application of the harmless error standard to a sentence in
this fact setting is an issue of first impression in our Court. We
will join our sister courts of appeals who have decided this issue
and hold that the error is not harmless. We will accordingly
vacate Langford’s sentence and remand to the District Court for
resentencing.
       I. FACTS AND PROCEDURAL HISTORY
        On March 9, 2005, Langford and his uncle, Charles
Collier, a career criminal, robbed the Iron and Glass Bank in
Scott Township, Pennsylvania. PSR ¶5-6. Armed with a pistol,
Langford remained in the lobby while Collier vaulted the teller
counter, announced the robbery, and emptied the money from
the teller drawers. PSR ¶7. Both men fled, were captured by
the police following a chase, and confessed to the bank robbery.


      Langford was indicted for bank robbery in violation of 18
U.S.C. § 2113(a), armed bank robbery in violation of 18 U.S.C.
§ 2113(d), and carrying and brandishing a firearm during a
crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
He pled guilty to the charges on December 20, 2005. App. 85.


      Langford was eighteen years old at the time of the bank
robbery and this was his first adult offense. App. 34. Langford

                                3
does, however, have a history of adjudications as a juvenile. In
the Presentence Investigation Report (“PSR”), the probation
officer concluded that consideration of three of Langford’s prior
adjudications of juvenile delinquency resulted in five criminal
history points.
      The two adjudications not at issue on appeal were as
follows:
       1. In 2001, at age fourteen, Langford was adjudicated
       delinquent for criminal conspiracy, possession, and
       possession with intent to deliver crack cocaine and
       ordered committed to a Community Intensive
       Supervision Program (and subsequently a detention
       center for violating the terms of his program). PSR ¶31,
       App. 126.
       2. In 2003, at age sixteen, he was adjudicated delinquent
       for robbery, criminal conspiracy, and fleeing the police.
       PSR ¶32.
While the charges were pending for his second offense,
Langford was released with electronic home monitoring. He
failed to appear for arraignment and a warrant was issued. On
September 29, 2003, he was apprehended by the police as he
attempted to steal a vehicle. PSR ¶33. That same day, a petition
for his second adjudication was filed in juvenile court charging
the defendant with the previous robbery charge. PSR ¶32. As
to the robbery charge, he was adjudicated delinquent on October
28, 2003 and committed to a youth development center. PSR
¶32. On October 28, 2003, he was also adjudicated delinquent
as to criminal attempt (auto theft), possession of instruments of
crime, resisting arrest, criminal mischief, and disorderly

                               4
conduct. The court discontinued that third adjudication and,
according to the PSR, ordered the defendant to provide a DNA
sample. PSR ¶33. This third adjudication (the “auto theft
adjudication”) is at issue on appeal.
       Because the 2005 bank robbery occurred less than two
years after Langford’s release from juvenile commitment to a
youth development center, the probation officer added an
additional criminal history two points, establishing a criminal
history category of IV. PSR ¶33.
        At sentencing, Langford’s counsel argued that the
appropriate criminal history category was III, rather than IV,
because the last adjudication did not result in a sentence and,
accordingly, no point should have been added. App. 116. The
Court disagreed and calculated a criminal history category of IV
which, when combined with a total offense level of 19, resulted
in a Sentencing Guidelines range of 46 to 57 months’
incarceration for Counts One and Two. App. 123. Langford
was sentenced to 46 months for Counts One and Two, to be
served concurrently. For Count Three, carrying and brandishing
a firearm during a crime of violence, Langford was subject to a
mandatory minimum term of 84 months’ imprisonment to be
served consecutively to the bank robbery charges. Langford’s
total sentence, therefore, was 130 months’ imprisonment.
Langford does not appeal his sentence for Count Three, but
rather contends that the District Court miscalculated the
Sentencing Guidelines range for Counts One and Two, thus
resulting in a longer overall sentence.
      Langford timely appealed. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v.

                               5
Lloyd, 469 F.3d 319, 321 (3d Cir. 2006). We review the District
Court’s interpretation of the Sentencing Guidelines de novo.
United States v. Pojilenko, 416 F.3d 243, 246 (3d Cir. 2005).


  II. CALCULATION OF LANGFORD’S CRIMINAL
HISTORY CATEGORY
       Langford argues that the District Court should not have
imposed a criminal history point for his juvenile adjudication for
attempted auto theft because it resulted in a “discontinuance” of
the delinquency petition. He maintains that a discontinuance is
not a “sentence” within the meaning of U.S.S.G. § 4A1.2(a).
Because no “sentence” was imposed, the adjudication should not
have been counted, and the proper criminal history category was
III, not IV. Accordingly, the Sentencing Guidelines range
should have been 37 to 46 months.
        U.S.S.G. § 4A1.2(a)(1) defines a prior sentence as “any
sentence previously imposed upon adjudication of guilt, whether
by guilty plea, trial, or plea of nolo contendere, for conduct not
part of the instant offense.” To be sure, as the government
argues, juvenile adjudications are not exempted from the
calculation of a defendant’s criminal history score. United
States v. Bucaro, 898 F.2d 368, 373 (3d Cir. 1990). Not all
juvenile adjudications, however, result in criminal history
points, largely because “[a]ttempting to count every juvenile
adjudication would have the potential for creating large
disparities due to the differential availability of records.”
U.S.S.G. § 4A1.2, cmt. n. 7. Therefore, for offenses committed
prior to age eighteen, the Guidelines comments limit criminal
history points to “those that resulted in adult sentences of

                                6
imprisonment exceeding one year and one month, or resulted in
imposition of an adult or juvenile sentence or release from
confinement on that sentence within five years of the
defendant’s commencement of the instant offense.” Id.
(emphasis added). Because the other categories of juvenile
adjudications that are to be counted are not relevant here, “the
imposition of an adult or juvenile sentence” is a prerequisite to
using Langford’s auto theft adjudication in the calculation of his
criminal history score.
        The key question is whether the discontinuance of
Langford’s auto theft adjudication constitutes a “sentence”
under the Guidelines. We must review the operations of the
Pennsylvania juvenile system to determine whether a
“discontinuance” falls within the definition of a prior “sentence”
set forth in U.S.S.G. § 4A1.2. See United States v. McKoy, 452
F.3d 234, 238-40 (3d Cir. 2006) (noting that while we use
federal, rather than state, law definitions and terminology, the
state proceeding and statutory scheme is relevant to determining
whether the adjudication actually resulted in a sentence as
defined by the Guideline and its commentary); accord U.S. v.
Morgan, 390 F.3d 1072, 1074 (8th Cir. 2004).
       In Pennsylvania, a juvenile delinquency adjudication
requires a court to find beyond a reasonable doubt that a child
committed acts that would constitute crimes if committed by an
adult. See 42 Pa.C.S.A. § 6341(b). Typically, the court then
orders a disposition.       Completed with the aid of a
comprehensive social study and investigation, a disposition may
operate as the functional equivalent of an adult sentence. See id.
§ 6339. However, “[i]f the court finds that the child is not in
need of treatment, supervision or rehabilitation it shall dismiss

                                7
the proceeding and discharge the child from any detention or
other restriction theretofore ordered.” See id. § 6341(b). Here,
the juvenile court adjudicated Langford delinquent in
connection with the attempted auto theft offense. Thereafter,
however, it ordered that the petition be discontinued.
        In the PSR for Langford’s sentencing, the probation
officer added one criminal history point for this adjudication in
reliance on U.S.S.G. § 4A1.2(a)(3), which provides that “[a]
conviction for which the imposition or execution of sentence
was totally suspended or stayed shall be counted as a prior
sentence under § 4A1.1(c).” Langford objected on the ground
that no sentence had actually been imposed. In response, the
probation officer admitted that the adjudication had resulted in
the “imposition of no sentence,” yet reached the improbable
conclusion that it could be counted as a prior sentence because
“[t]he imposition of no sentence, as occurred here, is akin to a
‘suspended’ sentence.” PSR 2d Addendum. On appeal, the
government asks us to use this analogy to find that the
discontinuance was a sentence.1
       If in fact the juvenile court had imposed probation or a
suspended sentence, our review would end here. The juvenile
court, however, did not impose a sentence and then suspend its
operation; it discontinued the action. Refusing to impose a
sentence is not the same as suspending a sentence. Black’s Law


 1
   At oral argument, the government changed tactics somewhat
and argued that only a juvenile diversion is not a sentence under
§ 4A1.2(f) and that the adjudication of guilt was akin to a
concurrent sentence. Neither of these contentions have merit.

                               8
Dictionary 1446 (6th ed. 1992) (defining a suspended sentence
as “[a] conviction of a crime followed by a sentence that is
given formally, but not actually served”). Even if we
understood the juvenile court to have continued the disposition
hearings under 42 Pa.C.S. § 6341(e) (which we do not), we
would not count a continuance as a “sentence” under the
Guidelines as this is, in essence, a juvenile diversion. See
U.S.S.G. § 4A1.2(f) (noting that “[a] diversionary disposition
resulting from a finding or admission of guilt, or a plea of nolo
contendere” from a juvenile court is not considered a sentence
under § 4A1.1(c)); United States v. McKoy, 452 F.3d 235, 238
(3d Cir. 2006).
       The government refers us to no authority from which we
can find that a discontinuance by a juvenile court constitutes a
sentence. Instead, it cites numerous cases where courts reached
the unremarkable conclusion that a suspended or probationary
sentence constitutes a sentence under U.S.S.G. § 4A1.2(a). See,
e.g., United States v. Holland, 195 F.3d 415 (8th Cir. 1999)
(examining a suspended sentence imposed by juvenile court);
United States v. Holland, 26 F.3d 26 (5th Cir. 1994) (same).
         Lastly, the government urges us to assume that the
juvenile court discontinued Langford’s attempted auto theft
adjudication only because Langford had already been committed
to a juvenile institution on a separate offense, so that “there was
simply no reason for the juvenile court to impose such a
sentence once again a few weeks later.” Appellee’s Br. at 17.
We decline the government’s invitation to engage in conjecture.
Even if we were able to ascertain the juvenile court’s motives,
they are irrelevant; the essential fact here is that the court
discontinued the petition and did not impose a sentence.

                                9
        In light of the foregoing, we hold that the discontinuance
of the juvenile adjudication here is not a sentence for the
purposes of U.S.S.G. § 4A1.2(a) and should not have been used
in the calculation of the defendant’s criminal history under the
Guidelines.2
       Since the discontinuance of a juvenile adjudication
cannot be considered a sentence for the purpose of U.S.S.G.
§4A1.2(a), adding a point to Langford’s criminal history on the
basis of this adjudication was error. This error, in turn, affected
the calculation of the overall criminal history category–moving
it from category III to IV–and the subsequent Guidelines range
calculation–changing it from a range of 37 to 46 months for
Counts One and Two to a range of 46 to 57 months.


         III. THE EFFECT OF AN INCORRECT
              GUIDELINES CALCULATION
       Although the Guidelines are now advisory and a



  2
    The government also argues for the first time on appeal that
the juvenile court’s order that was issued prior to the
discontinuance of the petition, requiring Langford to provide a
DNA sample, was sufficient to amount to a sentence.
Appellee’s Br. at 18. As Langford rightly observes, the cases
cited by the government provide no support for this proposition,
Appellee’s Br. at 17, and we have independently found none.
We reject this argument.


                                10
sentencing court has great discretion over the substance of the
sentence, the correct calculation of the applicable Guidelines
range remains an important procedural requirement. First of all,
as before Booker, the sentencing court is required to calculate
the Guidelines range in each case, and that calculation is the
focus of the parties’ arguments. Second, a district court is
required to consider the Guidelines range, pursuant to §
3553(a)(4), and use that range as a starting point for the entirety
of the § 3553(a) analysis. Based on its consideration of the §
3553(a) factors, the Court must state the reasons for its sentence
and explain whether a within-Guidelines sentence is appropriate
in the particular case, a process which generally will require a
correct Guidelines calculation. Third and finally, a correctly
calculated Guidelines range will often be a necessary
precondition of our reasonableness review. Where a district
court begins with an erroneous range, it will be difficult for us
to determine that it fulfilled its duty to consider the Guidelines
and reason through to the ultimate sentence. We will discuss
these considerations in turn.
A. Duty to calculate the Guidelines range in each individual
case
       In rendering the Guidelines advisory, the Supreme Court
made clear that sentencing courts are required to “consider” the
Guidelines in crafting a sentence. United States v. Booker, 543
U.S. 220, 245-46 (2005). Our Court thereafter provided district
courts with a three-step process to follow in order to comply
with the Supreme Court’s ruling in Booker:
       (1) Courts must continue to calculate a defendant’s
       Guidelines sentence precisely as they would have before

                                11
       Booker.
       (2) In doing so, they must formally rule on the motions of
       both parties and state on the record whether they are
       granting a departure and how that departure affects the
       Guidelines calculation, and take into account our
       Circuit’s pre-Booker case law, which continues to have
       advisory force.
       (3) Finally, they are to exercise their discretion by
       considering the relevant § 3553(a) factors in setting the
       sentence they impose regardless of whether it varies from
       the sentence calculated under the Guidelines.
United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006)
(quotation marks, brackets, and citations omitted); see also
United States v. Hawk Wing, 433 F.3d 622, 631 (8th Cir. 2006)
(stating that courts should calculate Guidelines ranges just as
they would have before Booker); United States v. Crosby, 397
F.3d 103, 112 (2d Cir. 2005) (“The applicable Guidelines range
is normally to be determined in the same manner as before
Booker/Fanfan.”). When a sentencing court miscalculates the
applicable range, it fails to discharge its duties under step one of
Gunter. As we made clear in United States v. Jackson, “because
the Guidelines still play an integral role in criminal sentencing,
we require that the entirety of the Guidelines calculation be done
correctly.” 467 F.3d 834, 838 n.4 (3d Cir. 2006) (citations
omitted).
B. The “starting point” of a district court’s § 3553(a) analysis
       The correct Guidelines calculation is not merely one of
three steps, but rather constitutes the “natural starting point”

                                12
from which the sentencing court exercises its discretion under
§ 3553(a) at Gunter’s third step. United States v. Cooper, 437
F.3d 324, 331 (3d Cir. 2006). As the Supreme Court recently
confirmed in Gall v. United States, “a district court should begin
all sentencing proceedings by correctly calculating the
applicable Guidelines range. As a matter of administration and
to secure nationwide consistency, the Guidelines should be the
starting point and the initial benchmark.” 128 S. Ct. 586, 596
(2007). The Court further observed that “[t]he fact that
§3553(a) explicitly directs sentencing courts to consider the
Guidelines supports the premise that district courts must begin
their analysis with the Guidelines and remain cognizant of them
throughout the sentencing process.” Id. at 597 n.6. The failure
to correctly apply the Guidelines was specifically listed by the
Supreme Court in Gall as a “significant procedural error.” Id.
at 597. A correct calculation, therefore, is crucial to the
sentencing process and result.
        An erroneous calculation of the Guidelines will frustrate
the sentencing court’s ability to give meaningful consideration
to “the kinds of sentence and the sentencing range established
for...the applicable category of offense committed by the
applicable category of defendant as set forth in the
guidelines....” as required by 18 U.S.C. § 3553(a)(4). The
Supreme Court recently noted that “[a] district judge must
include the Guidelines range in the array of factors warranting
consideration.” Kimbrough v. United States, 128 S. Ct. 558, 564
(2007) (emphasis added). As we have observed, “[b]ecause the
Guidelines reflect the collected wisdom of various institutions,
they deserve careful consideration in each case. Because they
have been produced at Congress’s direction, they cannot be

                               13
ignored.” United States v. Goff, 501 F.3d 250, 257 (3d Cir.
2007); accord United States v. Lalonde, 509 F.3d 750, 763 &
n.5 (6th Cir. 2007) (noting that after Gall, a court of appeals
“cannot find that a sentencing court has properly considered the
§ 3553(a) factors if it miscalculated the advisory Guidelines
range”).
        The proper Guidelines benchmarks–offense level,
criminal history, enhancements, and ultimate range–are
necessary prerequisites to a court’s analysis under § 3553(a)(4)
in general and, more specifically, § 3553(a)(6) (concerning
disparity between defendants) and § 3553(a)(5) (having to do
with the Sentencing Commission commentary). For example,
where a court miscalculates a defendant’s criminal history, its
attempts to avoid disparity between defendants pursuant to §
3553(a)(6) will be misguided as it ineluctably will compare the
defendant to others who have committed the same offense but
are in a different criminal history category. Similarly, if a
sentencing court incorrectly decides that a reckless
endangerment adjustment under U.S.S.G. § 3C1.2 applies, it
may rely on inapplicable Sentencing Commission comments as
it evaluates the § 3553(a) factors.
       Moreover, a sentencing court’s exercise of its discretion
to impose a sentence outside the Guidelines range or to
determine that “a within-Guidelines sentence is ‘greater than
necessary’ to serve the objectives of sentencing,” Kimbrough,
128 S. Ct. at 564, will necessarily be skewed when it
misperceives the applicable range. Without knowing the correct
range, a district court may impose an outside-the-Guidelines
sentence without providing adequate explanation or, alternately,
may impose a sentence believed to be at one end of the range or

                              14
below the range, but that actually falls within the correct range.
        Imposing a sentence outside the correctly calculated
Guidelines range without explanation would fly in the face of
the Supreme Court’s and our precedent. As the Supreme Court
noted in Rita v. United States, § 3553(c) calls for a sentencing
judge “at the time of sentencing” to “state in open court the
reasons for its imposition of the particular sentence.” 127 S. Ct.
2456, 2468 (2007). Without a correct Guidelines range, a
sentencing court will fail to comply with the Supreme Court’s
holding that a sentencing court must properly justify a sentence
based on the record and Guidelines calculation before it. Id. at
2465-68 (reiterating the importance of the sentencing court’s
subjecting the sentence to thorough adversarial testing). As we
said in United States v. Fisher,
       [i]f, after calculating the appropriate Guidelines, a
       district judge finds that the imposition of a
       within-Guidelines sentence would visit an injustice upon
       the defendant pursuant to 18 U.S.C. § 3553(a), it is
       incumbent upon the judge to say so, and sentence below
       the Guidelines range. Conversely, when the Guidelines
       range is too low to satisfy 18 U.S.C. § 3553(a), the
       district judge must explain why this is so and vary
       upward.
502 F.3d 293, 308 (3d Cir. 2007) (citing Rita, 127 S. Ct. at
2464, 2466). Due process concerns underlie these requirements.
United States v. Ausburn, 502 F.3d 313, 322 (3d Cir. 2007)
(“[D]ue process in criminal sentencing requires that a defendant
receive notice of, and a reasonable opportunity to comment on,
(a) the alleged factual predicate for his sentence, and (b) the

                               15
potential punishments which may be imposed at sentence.”);
United States v. Fuller, 426 F.3d 556, 565 (2d Cir. 2005) (in
discussing the pre- and post-Booker cases, the court noted that
a district court’s failure to comply with § 3553(c)(2) denies a
defendant “‘the right to argue more effectively ... whether ... a
sentence is ‘reasonable’”).
C. An incorrect calculation of the Guidelines range can thwart
reasonableness review
       Our reasonableness review relies on a district court’s
reasoning from the starting point of the correctly calculated
Guidelines through the § 3553(a) factors. Our Court, our sister
courts of appeals, and the Supreme Court agree that a district
court’s use of the incorrect Guidelines range impedes our ability
to conduct review of the ultimate sentence.
       We have emphasized that a sentencing court’s failure to
execute Gunter’s first step will tend to thwart our
reasonableness review. See Jackson, 467 F.3d at 838-39
(“[D]istrict courts must still calculate what the proper
Guidelines sentencing range is, otherwise the Guidelines cannot
be considered properly at Gunter’s third step.”). For, the correct
computation of the Guidelines range and any departures
therefrom “serves to clarify the basis for the sentence imposed”
and thus facilitates reasonableness review. United States v.
Floyd, 499 F.3d 308, 311 (3d Cir. 2007). In United States v. Ali,
we explained that, by relying on an incorrectly calculated
Guidelines range and an improper departure determination, a
sentencing judge “necessarily was unable meaningfully to
consider the recommended Guidelines range as required by §
3553(a)(4).” 508 F.3d 136, 154 (3d Cir. 2007). Thus, we

                               16
concluded, “the preliminary errors at steps one and two tainted
the step three analysis and resulting sentence.” Id. (remanding
for resentencing based on the court’s error at Gunter’s step one).
        Our sister courts of appeals agree that “the correct
guidelines range is still the critical starting point for the
imposition of a sentence” and a prerequisite to reasonableness
review. Crawford, 407 F.3d at 1178-79; Hawk Wing, 433 F.3d
at 631 (internal quotation marks omitted); United States v.
Zeigler, 463 F.3d 814, 819 (8th Cir. 2006) (Hansen, J.,
concurring) (“Generally, if the district court errs in applying the
Guidelines at step one or fails to consider a requested departure
at step two, we cannot conduct a reasonableness review because
the district court’s critical starting point, a correctly determined
advisory Guidelines range, may be flawed.”); United States v.
Staten, 466 F.3d 708, 713 (9th Cir. 2006) (“If...‘there was
material error in the Guidelines calculation that serves as the
starting point for the district court’s sentencing decision, we will
remand for resentencing pursuant to 18 U.S.C. § 3742(f),
without reaching the question of whether the sentence as a
whole is reasonable in light of § 3553(a).’”). As the Court of
Appeals for the Eighth Circuit has stated, where “the sentence
fails the first step of our analysis [because of an incorrect
application of the Guidelines], we need not reach the second
step, a determination of whether the imposed sentence is
reasonable in light of § 3553(a).” United States v. Mashek, 406
F.3d 1012, 1020 (8th Cir. 2005); see also United States v.
Williams, 456 F.3d 1353, 1360 (11th Cir. 2006) (only if the
Guidelines calculation is correct or the error harmless can the
court go on to consider whether the sentence is reasonable);
United States v. Hernandez-Castillo, 449 F.3d 1127, 1129-30

                                17
(10th Cir. 2006) (same).
        The importance of a correctly calculated range to our
reasonableness review is evident in the Supreme Court’s
opinions as well. While Gall reinforced a district court’s
discretionary authority to choose the substance of a sentence, it
also clarified the role of courts of appeals in reviewing
procedural and substantive errors in sentencing. In both Gall
and Kimbrough, the Court began by noting that the sentencing
court had properly calculated and considered the advisory
Guidelines range and only then turned to the sentencing court’s
consideration of the § 3553(a) factors. Kimbrough, 128 S. Ct.
at 575; Gall, 128 S. Ct. at 598. Accordingly, in Gall, the Court
instructed us to “ensure that the district court committed no
significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence-including an
explanation for any deviation from the Guidelines range” before
considering the substantive reasonableness of a sentence. Gall,
128 S. Ct. at 597. This first step, ensuring that the sentencing
court did not make a procedural error, is increasingly important
in light of the Supreme Court’s decision that “a Guidelines
sentence will usually be reasonable.” Rita, 127 S. Ct. at 2468.
       In sum, while “the district court is free to make its own
reasonable application of the § 3553(a) factors, and to reject
(after due consideration) the advice of the Guidelines,”
Kimbrough, 128 S. Ct. at 577 (Scalia, J., concurring), it must
first duly consider the correct Guidelines. Thus, a district
court’s incorrect Guidelines calculation will thwart not only its

                               18
ability to accomplish the analysis it is to undertake, but our
reasonableness review as well.


             IV. HARMLESS ERROR IN THE
                 SENTENCING CONTEXT
        We suggest that, given the importance of a correct
Guidelines calculation both to the sentencing process that
district courts are required to conduct and to our ability to carry
out reasonableness review, the use of an erroneous Guidelines
range will typically require reversal under 18 U.S.C. § 3742(f).
Nonetheless, under certain, limited circum stances,
miscalculation of the Guidelines may be harmless. The
government urges that this is one such time because the correct
and incorrect ranges here overlap. We are not so sure.
        According to our traditional harmless error standard, a
non-constitutional error is harmless when “it is highly probable
that the error did not prejudice” the defendant. Government of
Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir. 1976).
“‘High probability’ requires that the court possess a ‘sure
conviction that the error did not prejudice’ the defendant.”
United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995)
(quoting United States v. Jannotti, 729 F.2d 213, 219-20 (3d Cir.
1984)); accord United States v. Wallace, 461 F.3d 15, 44 (1st
Cir. 2006) (vacating and remanding under the plain error
standard because it “lack[ed] the ‘definite and firm conviction’
that removal of the inappropriate grounds would not be likely to
alter the district court’s view of the sentence rightfully to be
imposed”); United States v. Duckro, 466 F.3d 438, 446 (6th Cir.

                                19
2006) (“[w]here a district court makes a mistake in calculating
a Guidelines range for purposes of determining a sentence under
section 3553(a), we are required to remand for resentencing
‘unless we are certain that any such error was harmless-i.e. any
such error “did not affect the district court's selection of the
sentence imposed.”’”) (citations omitted). As the Supreme
Court has instructed, the proponent of the sentence bears the
burden of “persuad[ing] the court of appeals that the district
court would have imposed the same sentence absent the
erroneous factor.” Williams v. United States, 503 U.S. 193, 203
(1992). For the error to be harmless, it must be clear that the
error did not affect the district court’s selection of the sentence
imposed. Id. at 203. Accordingly, we will remand for
resentencing “unless [we] conclude on the record as a
whole...that the error did not affect the district court’s selection
of the sentence imposed.” Id.
        We submit that the improper calculation of the
Guidelines range can rarely be shown not to affect the sentence
imposed. In the typical case in which an error in the calculating
of Sentencing Guidelines has been held harmless, the sentence
was dictated not by the erroneously calculated Guideline, but by
a statutory minimum or maximum or another properly calculated
Guideline. United States v. Frazier, 213 F.3d 409, 417-18 (7th
Cir. 2000) (finding that the sentencing court’s miscalculation of
the defendant’s criminal history category was irrelevant to the
sentence imposed because his offense level carried a life
sentence); see also United States v. Wilken, 498 F.3d 1160 (10th
Cir. 2007) (holding that the erroneous application of an
enhancement did not affect the district court’s selection of the
sentence imposed because defendant qualified as a career

                                20
offender and as such was subject to categorically prescribed
offense and criminal history levels); United States v. Long
Soldier, 431 F.3d 1120, 1121 (8th Cir. 2005) (“The district
court’s erroneous belief that it could not depart upward did not
deprive Long Soldier of any substantial-or even beneficial-right.
He was deprived merely of the opportunity to receive an upward
departure and, perhaps, a longer sentence. As such, any error is
harmless....”). In such cases, although an error was made, it
could not have impacted the ultimate sentence.
        The government contends that a sentencing error is also
harmless where, as here, the sentence imposed falls into the
“overlap” between the incorrect Guidelines range used by the
sentencing court and the correct Guidelines range. Although
some courts have adopted an “overlapping range” rationale, we
conclude that such an “overlap” does not necessarily render an
error in the Guidelines calculation harmless. Such an overlap,
alone, proves too little. The record must show that the
sentencing judge would have imposed the same sentence under
a correct Guidelines range, that is, that the sentencing
Guidelines range did not affect the sentence actually imposed.
The overlap may be helpful, but it is the sentencing judge’s
reasoning, not the overlap alone, that will be determinative.3



   3
     See United States v. Harris, 390 F.3d 572, 573 (8th Cir.
2004) (concluding that, based on the record from sentencing, it
was clear that the district court would have imposed the same
sentence and noting that had the overlap been at the bottom of
the overlapping area, “there might be an inference that the court
would have given [the defendant] a lower sentence if he had

                               21
        In United States v. Knight, we made clear that we do not
agree that an overlap between ranges renders an error harmless.
266 F.3d 203 (3d Cir. 2001). In Knight, the District Court
erroneously calculated the Guidelines range as 151 to 188
months and imposed a 162-month sentence that fell within the
correct Guidelines range of 140 to 175 months. Id. at 205.
Under the exacting plain error standard, we held that
“application of an incorrect Federal Sentencing Guidelines
range presumptively affects substantial rights, even if it results
in a sentence that is also within the correct range.” Id.; see also
United States v. Wood, 486 F.3d 781, 790-91 (3d Cir. 2007)
(relying on Knight post-Booker and vacating and remanding);
United States v. Felton, 55 F.3d 861, 869 n.3 (3d Cir. 1995)
(“This circuit and others have found that the miscalculation of
a defendant’s offense level ‘certainly is error that seriously
affect[s] the defendant’s rights, and so amounts to plain error.’”)


received a [smaller] adjustment”); United States v. Rivera, 22
F.3d 430, 439 (2d Cir. 1994) (holding that where there was an
overlap in the sentence the defendant advocated and the range
used by the court (which in any case the court of appeals
believed to be correct) and the sentencing court made clear that
it would have imposed the same sentence regardless of the
range, the error was harmless); cf. United States v. Dillon, 905
F.2d 1034, 1037-38 (7th Cir. 1990) (speculating that because the
correct Guidelines range and that used overlapped, the
sentencing judge would have imposed a sentence at the high end
under the correct range because of other factors the judge had
properly considered, even though the sentence was in the middle
of the range actually used).

                                22
(citation omitted); United States v. Pollen, 978 F.2d 78, 90 (3d
Cir. 1992) (“The district court’s improper calculation ...,
resulting in a significantly higher Guideline sentencing range,
certainly is an error that seriously affected [defendant]’s
substantial rights and so amounts to plain error.”). We reviewed
numerous cases wherein our sister courts of appeals similarly
concluded that the selection of an incorrect Guidelines range
was plain error even though the actual sentence happened to fall
within the correct Guidelines range. Id. at 208-10. Recognizing
that some cases had been to the contrary, we decided that our
case law was more sound in that it better protects the
defendant’s right to a sentence “imposed pursuant to correctly
applied law” and “better effectuates the Guidelines’ purpose to
institute fair and uniform sentencing.” Id. at 210. We reviewed
the record and determined that “we would be unable to conclude
that it is even reasonably likely that the same sentence would
have been imposed if the correct range and history were
considered.” Id. at 208.
        Even when the sentence is below the Guidelines range,
the record must be unambiguous that the miscalculation of the
range had no effect. Accordingly, in United States v. Thayer,
we reviewed a sentence where the district court had erred in
calculating the range, but had also granted a six-level downward
departure to arrive at an 18-month sentence. 201 F.3d 214 (3d
Cir. 1999).      The government argued that remand was
unnecessary because, even if the court used the correct
Guidelines range and again departed downward six levels, the
range would be 12 to 18 months. Id. at 228. It also contended
that, irrespective of the Guidelines range, “the District Court
considered 18 months incarceration the proper sentence in

                              23
Thayer’s case and departed downward six levels in order to
obtain that sentence.” Id. at 230. We said that, although the
court had stated that it would not impose a sentence of
probation, it was unclear on the record that it would not again
depart six levels and impose an even lower sentence at the
bottom of the Guidelines range. Id. at 230 (stating that “the
record support for the possibility Thayer would have received a
shorter sentence but for the § 2F1.1(b)(4)(B) enhancement is
sufficient to require remand”).
       Moreover, when the starting point for the § 3553(a)
analysis is incorrect, the end point, i.e., the resulting sentence,
can rarely be shown to be unaffected. As noted above, the
record must show that the incorrect calculation of the Guidelines
did not “result in the district court selecting from the wrong
guideline range” and “did not affect the sentence imposed.”
Williams, 503 U.S. at 202. Although many of our harmless error
cases were decided in the mandatory Guidelines regime, they
point in the same direction under an advisory regime:4 we



  4
   This is not a novel conclusion. United States v. King, 454
F.3d 187, 196 (3d Cir. 2006) (noting that our pre-Booker case
law “continues to have advisory force”); Wood, 486 F.3d at 790-
91 (applying our pre-Booker harmless error holdings to a
sentence under the advisory Guidelines). Post-Booker, our sister
courts of appeals also have turned to their prior decisions on
harmless error for guidance. See, e.g, United States v. Robinson,
433 F.3d 31, 35 (1st Cir. 2005); United States v. Villegas, 404
F.3d 355, 361-62 (5th Cir. 2005); United States v. Mashek, 406
F.3d 1012, 1015 (8th Cir. 2005); United States v. Crawford, 407

                                24
cannot presume that a district court would have imposed the
same sentence, given the opportunity to consider the correctly
calculated Guideline. See Pollen, 978 F.2d at 89-90 (noting that
speculation would be inappropriate given the nature of a
sentencing court’s decision); United States v. Crawford, 407
F.3d 1174, 1183 (11th Cir. 2005) (“We cannot presume that, in
the absence of those errors, the district court would have
decided that a downward departure was warranted in calculating
an advisory guideline range.”). As the Court of Appeals for the
Tenth Circuit said, “what the district court will do upon
resentencing absent the illegal presumption ‘places us in the
zone of speculation and conjecture.’” United States v. Conlan,
500 F.3d 1167 (10th Cir. 2007) (citation omitted). An
assumption that the sentencing court would have arrived at the
same precise sentence is speculation indeed.
        In the rare case, a district court may choose to disregard
the Guidelines as too severe in such a way that we can be certain
that the miscalculation had no effect on the sentence imposed.
 United States v. Flores may be that unusual case where the
sentence imposed was not tied to the Guidelines range or a
specific departure or variance from the Guidelines, but rather
represented a discretionary sentence imposed based on 3553(a)’s
parsimony provision. 454 F.3d 149 (3d Cir. 2006). There, after
calculating an advisory Guidelines range of 70 to 87 months’
imprisonment, the district court sentenced Flores to 32 months’
imprisonment without granting a formal departure. Id. at 162.
On appeal, we concluded that the Guidelines range made no



F.3d 1174 (11th Cir. 2005).

                               25
difference: the “District Court clearly considered all the factors
in 18 U.S.C. § 3553(a) in reaching its sentence and used its
discretion in light of these factors, rather than in the application
of a specific downward departure, to go below his advisory
Guidelines range to identify the appropriate sentence for
Flores.” Id. Thus, the sentencing court could not be said to
have imposed the sentence “as a result” of any alleged errors in
the calculation of the Guideline.
        In order to conclude that a district court would not have
imposed a different sentence, the record must be clear. A
“blanket statement” that the sentence imposed is fair is not
sufficient; a district court must determine a Guidelines range
without the miscalculation error and explain any variance from
it based on § 3553(a) factors. See United States v. Icaza, 492
F.3d 967, 971 (8th Cir. 2007) (“[T]he record must clearly show
not only that the district court intended to provide an alternative
sentence, but also that the alternative sentence was based on an
identifiable, correctly calculated guidelines range.”); United
States v. Funk, 477 F.3d 421, 430 (6th Cir. 2006) (“If we were
to view Funk’s sentence simply as a sentence where ‘the district
court independently [chose] to deviate from the advisory
guidelines range,’ we would still need to determine whether the
district court adequately justified the extent of this deviation.”)
(citation omitted). Sentencing in the post-Booker era is a
process, not a mere affixing of a point within a mandated range
as was previously the case.
        The dissent urges that we resolve the issue before us by
looking to see if the correct range seems close enough to the
actual sentence imposed. If so, the argument goes, the sentence
is “reasonable.” However, this ignores the fact that the failure

                                26
to start with the correct Guideline range is legal error that
thwarts reasonableness review–that is, it cuts off our review
process before we even reach the issue of reasonableness. As
part of the sentencing process, error can occur at the outset, as
the Supreme Court noted in Gall, and we must determine if such
error is harmless. If it does not impact the analysis and ultimate
sentence such that we can say that it probably made no
difference, then the ultimate sentence may be reviewed for
reasonableness. However, if this cannot be said with some
degree of comfort, the sentence must be vacated and the case
remanded.
       Similarly flawed is the dissent’s adoption of a new test–is
the procedural error “insignificant”? In Gall, the Supreme Court
clearly considered error in the Guideline range to be significant,
noting that such errors thwart our reasonableness review and
including all such errors in its listing of “significant” procedural
errors. Gall, 128 S. Ct. at 597. Moreover, there is no legal test
for “insignificance.” Instead, harmlessness is the appropriate
barometer and here it cannot be met.


V.  APPLICATION OF                   THE      A NALY SIS        TO
LANGFORD’S SENTENCE
       The present case is not that rare case where we can be
sure that an erroneous Guidelines calculation did not affect the
sentencing process and the sentence ultimately imposed.
Contrary to the government’s view, we cannot conclude that the
miscalculation of Langford’s criminal history category was
harmless.


                                27
       At Langford’s sentencing, the District Court said that the
Sentencing Guidelines “have been deemed to be advisory in
nature. They still, however, remain a factor that Court is
required to consider in imposing sentence.” App. 122. The
District Court did an admirable job of considering the 3553(a)
factors and evaluating the characteristics specific to Langford
and his offense. The Court then imposed a sentence at the
lowest point in the advisory Guidelines range it had calculated.
       The government is correct that the 46-month sentence
was within the Guidelines range in either case. However, if the
criminal history point had not been added, the Court could have
imposed a 37-month sentence without departing from the
Guidelines, and the 46 months it did impose would have been at
the top, not at the bottom, of the proper range.
         There is absolutely nothing in the record to indicate that
the District Court would have imposed the same sentence under
a lower Guidelines range. We must decline the government’s
invitation to affirm on the theory that the District Court might
have imposed the same sentence. See Thayer, 201 F.3d 214;
United States v. Duckro, 466 F.3d 438 (6th Cir. 2006) (holding
that, even where the district court departed downward
significantly from the originally (incorrectly) calculated range,
one could not presume that the court would have departed less
under a correct and lower Guidelines range).5 We are not


  5
    Indeed, given that the Court imposed a sentence at the low
end of the erroneous Guidelines range, a more reasonable
inference is that it would have selected from the low end of the
correctly calculated range. Duckro, 466 F.3d at 447 (finding

                                28
persuaded that the record is clear that the sentence imposed was
not a result of the erroneous sentencing Guidelines range.
       We will remand for the District Court to determine the
sentence that should be imposed in light of the correct
Guidelines range, considering the 3553(a) factors. Solem v.
Helm, 463 U.S. 277, 290 n.16 (1983) (“[I]t is not the role of an
appellate court to substitute its judgment for that of the
sentencing court as to the appropriateness of a particular
sentence.”).6


that, because the sentencing court had selected from the low end
of the Guidelines range it believed to be correct, “it stands to
reason that it might choose an even lower sentence when
presented with” a lower range); Harris, 390 F.3d at 573
(suggesting that the proper inference to draw from a sentence
imposed at the bottom of the overlapping area might be that the
court would have imposed a lower sentence under a correct
Guidelines calculation).
  6
     Langford further contends that because his uncle and co-
defendant Charles Collier has now been sentenced, a downward
variance will be called for on remand. At Collier’s sentencing,
the District Court departed downward one criminal history
category and twelve offense levels, such that Collier’s sentence
was 57 months, with a mandatory statutory consecutive
minimum of 84 months, for a total of 141 months. Langford
suggests that in order to avoid disparity in sentencing, given
Collier’s career offender status, age, and role in the offense, the
Court will likely depart downward for his sentence as well. We
will not speculate as to any downward departures the Court may

                                29
       The goals of uniformity and sentencing discretion are
furthered by a remand. Where we conclude that the District
Court might have ended up with a different sentence had it
started at the right point, giving the Court the opportunity to
reconsider the sentence and start at the right place in
resentencing actually affords deference and respect for the
District Court judge.       Our failure to do so would be
presumptuous on our part; it is not our role to say that the
sentencing judge would consider the sentence he gave, which
was at the low end of the incorrectly calculated range, to be
appropriate when the correct Guideline range is lower than was
assumed. Moreover, insisting on a uniform point of departure
from which all sentencing courts can exercise their discretion
promotes uniformity in the sentencing of defendants with similar
criminal history and offense levels. Surely, a remand with
opportunity for reasoning anew is required in order to further
both goals.


     VI. LANGFORD’S REMAINING ARGUMENT
      Langford also argues that his sentence was unreasonable
because the District Court violated the law by giving
presumptive weight to the Guidelines and imposing a sentence




or may not make, but note that the Court may, but is not required
to, take the disparity into account in resentencing Langford. See
United States v. Parker, 462 F.3d 273, 276-78 (3d Cir. 2006).

                               30
greater than necessary to meet the purposes of sentencing.7
Because Langford was sentenced as a result of an incorrect
application of the Guidelines, the sentence fails the first step of
our Gunter analysis and, therefore, we need not reach the third
step of determining whether the sentence is reasonable in light
of the § 3553(a) factors. See Mashek, 406 F.3d at 1020.


                     VII. CONCLUSION
      For the foregoing reasons, we will vacate Langford’s
sentence and remand to the District Court for resentencing.




  7
   As to these contentions, it is clear that a district court should
not give presumptive weight to the Guidelines, Gall, 128 S. Ct.
at 597, and “may determine...that, in the particular case, a
within-Guidelines sentence is ‘greater than necessary’ to serve
the objectives of sentencing.” Kimbrough, 128 S Ct. at 564.

                                31
WEIS, Circuit Judge, Dissenting.
        I agree with the majority’s conclusion that the District
Court erred in treating the discontinuance of a juvenile
adjudication as a sentence for the purpose of U.S.S.G. § 4A.2(a).
The resulting addition of a point to the defendant’s criminal
history modified his category from III to IV, changing the
applicable Guidelines range for Counts One and Two from 37 -
46 months to 46 - 57 months. The miscalculation, however, did
not make the sentence unreasonable. The record shows that the
Guidelines computation did not contaminate the final 46-month
sentence and served as a sufficient benchmark for the Court’s
analysis.     The sentence imposed satisfies this Court’s
reasonableness review based on consideration of all the 18
U.S.C. § 3553(a) sentencing factors. It is also consistent with
our suggestion in United States v. Jackson, 467 F.3d 834 (3d
Cir. 2006), that some errors in Guidelines calculations “can be
harmless, as the sentence imposed after a district court exercises
its discretion in step three . . . is subject to our reasonableness
review.” Id. at 839 n.6.
                                I.
       A brief history is helpful to understand the issue here.
For most of the twentieth century federal courts operated under
a long-standing indeterminate system which gave judges
discretion to sentence defendants within a broad range set by
Congress. Mistretta v. United States, 488 U.S. 361, 363-65
(1989) (“[U]nder the indeterminate-sentence system, Congress
defined the maximum, [and] the judge imposed a sentence
within the statutory range (which he usually could replace with
probation) . . . .”).
       “[W]idespread dissatisfaction with the uncertainties and
the disparities” in sentencing led to drastic alterations in this




                                32
system through the Sentencing Reform Act of 1984.8 Id. at 366.
The Act created the United States Sentencing Commission and
directed it to promulgate Guidelines establishing narrow ranges
of determinate sentences for categories of offenses and
defendants. 28 U.S.C. §§ 991, 994. Congress provided a list of
factors that the sentencing court should consider when
determining the point within the new Guidelines range at which
the sentence should be imposed. 18 U.S.C. § 3553(a).
        Congress also declared the Guidelines ranges would be
binding on courts, except in limited circumstances where
departure from the range would be permitted. 18 U.S.C. §
3553(b). Judges were required to state in open court the reasons
for the final sentence imposed and to “give specific reasons” for
any departure. 18 U.S.C. § 3553(c).
         November 1, 1987, the effective date of the first set of
Guidelines and 18 U.S.C. § 3553, ushered in an era of limited
judicial discretion in sentencing.     The rigid mandatory
Guidelines system survived until set aside by United States v.
Booker, 543 U.S. 220 (2005). In that case, the Supreme Court
held that the mandatory nature of the Guidelines violated the
Sixth Amendment by requiring judges in certain situations to
impose an enhanced sentence based on facts not found by a jury.
Id. at 244.
       To remedy the constitutional infirmity, the Court excised
two provisions of the Sentencing Reform Act. First, the Court
removed 18 U.S.C. § 3553(b)(1), making the Guidelines
“effectively advisory.” Id. at 245. The Court left the remainder
of § 3553 intact, reasoning that such an arrangement best
preserved Congress’ intent to promote increased uniformity
while preserving flexibility for individualized sentencing. Id. at
263-65. As a result, sentencing courts were no longer bound to


  8
      Pub. L. No. 98-473, 98 Stat. 1987 (1984).

                               33
 impose the penalty at a set point within a fixed range, but were
 required to “take account of the Guidelines” along with the other
 sentencing factors listed in § 3553(a). Id. at 259-60. Second,
 the Court severed an appellate review provision that depended
 on the mandatory nature of the Guidelines, 18 U.S.C. § 3742(e),
 and in its stead directed appellate courts to review sentences for
 reasonableness based on the trial court’s application of the §
 3553(a) factors. Id. at 261-62.
                                  II.
         The Guidelines are intended to bring uniformity in
 sentencing, an important goal for criminal justice.       The
 Commission had attempted to ensure that offenders with similar
 circumstances receive similar sentences. 9 Although there is
 merit to the concept of national uniformity, the Sentencing
 Commission’s “one-size-fits-all” approach led to a mechanical
 sentencing regime that created its own disparities and
 injustices.10
         The Booker line of cases is in tension with the concept of



2. In the statute establishing the Commission, Congress stated
that it should, inter alia, “establish sentencing policies and
practices for the Federal criminal justice system that . . . avoid[ ]
unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar criminal
conduct.” 28 U.S.C. § 991(b)(1)(B).


3. For thoughtful criticism of the pre-Booker Guidelines system,
see Albert W. Alschuler: The Failure of Sentencing Guidelines:
A Plea for Less Aggregation, 58 U. Chi. L. Rev. 901 (1991);
Frank O. Bowman, III, The Failure of the Federal Sentencing
Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315
(2005).

                                  34
 national uniformity. See Kimbrough v. United States, 128 S. Ct.
 558, 574 (2007) (“[O]ur opinion in Booker recognized that some
 departures from uniformity were a necessary cost of the remedy
 we adopted.”). In declaring the Guidelines advisory, rather than
 mandatory, the Supreme Court restored much of the discretion
 district courts previously possessed.
       The authority the Court has approved, however, is limited
 by the role the Guidelines still play in sentencing. The
 Guidelines remain an important part of the sentencing process
 post-Booker.
        The Supreme Court has stated that “the Guidelines range
should be the starting point and the initial benchmark” for
sentencing determinations, Gall v. United States, 128 S. Ct. 586,
596 (2007), because “in the ordinary case, the Commission's
recommendation of a sentencing range will ‘reflect a rough
approximation of sentences that might achieve § 3553(a)'s
objectives.’” Kimbrough, 128 S. Ct. at 574 (quoting Rita v. United
States, 127 S. Ct. 2456, 2465 (2007)). The Court also explained
that “[t]he fact that § 3553(a) explicitly directs sentencing courts
to consider the Guidelines supports the premise that district courts
must begin their analysis with the Guidelines and remain
cognizant of them throughout the sentencing process.” Gall, 128
S. Ct. at 597 n.6.
        Although the Supreme Court has preserved the continuing
role of the Guidelines, it has limited their influence in the
sentencing process. In Rita, Gall, and Kimbrough, the Court
sought to remedy the errors of many courts that “continued to treat
the Guidelines as virtually mandatory,” Rita, 127 S. Ct. at 2474
(Stevens, J., concurring), by reemphasizing their advisory nature
as well as the broad discretion granted sentencing courts under §
3553(a). See, e.g., Kimbrough, 128 S. Ct. at 564 (“A district
judge must include the Guidelines range in the array of factors
warranting consideration. . . . [but] may determine, however, that,
in the particular case, a within-Guidelines sentence is ‘greater than

                                 35
necessary’ to serve the objectives of sentencing.” (quoting 18
U.S.C. 3553(a))).
        The Court explained that, after determining the Guidelines
range, a sentencing judge must “consider all of the § 3553(a)
factors to determine whether they support the sentence requested
by a party. In so doing, he may not presume that the Guidelines
range is reasonable. He must make an individualized assessment
based on the facts presented.” Gall, 128 S. Ct. at 596-97 (internal
citation omitted); see also Kimbrough, 128 S. Ct. at 564 (the
Guidelines only “serve as one factor among several courts must
consider in determining an appropriate sentence.”).11
       The Supreme Court’s emphasis shows that the Guidelines
should not be granted presumptive weight over the “array of
factors,” Kimbrough, 128 S. Ct. at 564, considered in the §


4. In this Circuit, sentencing courts should observe the following
steps:
       “(1) Courts must continue to calculate a defendant's
       Guidelines sentence precisely as they would have
       before Booker.
       (2) In doing so, they must formally rule on the
       motions of both parties and state on the record
       whether they are granting a departure and how that
       departure affects the Guidelines calculation, and
       take into account our Circuit's pre-Booker case law,
       which continues to have advisory force.
       (3) Finally, they are required to exercise their
       discretion by considering the relevant § 3553(a)
       factors in setting the sentence they impose
       regardless whether it varies from the sentence
       calculated under the Guidelines.”

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006)
(internal citations, brackets, and quotation marks omitted).

                                36
3553(a) analysis. After Booker, the primary purpose of the
Guidelines calculation is to provide the sentencing court with a
“benchmark” or center of reasonableness on which to base the §
3553(a) analysis. The sentencing judge is not bound to remain
within the “rough approximation” provided by the Guidelines
range, but may sentence a defendant based on the other § 3553(a)
factors at a point anywhere within a zone of reasonableness
surrounding the benchmark provided by the Guidelines range. As
we said in United States v. Jimenez, No. 05-4098, 2008 WL
115206 (3d Cir. Jan. 14, 2008), “[r]easonableness is a range, and
our job is to ensure that the district court properly exercised its
discretion by imposing a sentence within the range of
reasonableness that is logically based upon, and consistent with,
the § 3553(a) factors.” Id. at *22.
       This procedure promotes flexibility by allowing the
formulation of a sentence that represents a resolution of the often
conflicting views of the public, Congress, law enforcement, and
courts. The Guidelines provide national ranges and thus set
guideposts that district courts can consult before pondering the
other factors that are to be taken into account in setting the final
sentence.
       Recognizing that the Guidelines are no longer given
primacy in the complex § 3553(a) calculus also resolves the
conflict between the district court’s ability to impose a sentence
tailored to the offender’s individual circumstances and Congress’
goal of uniform and predictable sentences. This conclusion is
bolstered when one considers that to some extent there is an
overlap between the factors a sentencing court considers during
the Guidelines computation and the §3553(a) calculus.
                                III.
        These considerations also guide our review. Appellate
courts “must first ensure that the district court committed no
significant procedural error, such as failing to calculate (or


                                37
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, [or] failing to consider the § 3553(a)
factors.” Gall, 128 S. Ct. at 597 (emphasis added). Then they
must give due deference to the sentencing judge’s determination
under § 3553(a) of the final point at which to impose the sentence.
Id. at 597; see also Rita, 127 S. Ct. at 2469 (“The sentencing judge
has access to, and greater familiarity with, the individual case and
the individual defendant before him than the Commission or the
appeals court.”).
        Rita, Gall, and Kimbrough show that appellate review
hinges on the reasonableness of the ultimate sentence as based on
the total § 3553(a) analysis, rather than on the calculation of the
Guidelines range. The reasonableness of a sentence will not be
vitiated by an “insignificant” error in the Guidelines calculation.
The Guidelines computation should be performed carefully, but
it is designed to produce a range – not a designated point.
Consequently, the Guidelines calculation need not be as precise as
an engineering drawing.
        There is enough play in the system to allow for harmless
error. Although a sentence may be unreasonable if a district court
makes clearly erroneous factual findings when determining the
Guidelines range, the doctrines of plain error or harmless error can
apply to preserve the sentence imposed. See Jimenez, 2008 WL
115206, *16 (citing United States v. Grier, 475 F.3d 556, 570 (3d
Cir. 2007)); see also Booker, 543 U.S. at 268 (stating that
appellate courts reviewing sentences should “apply ordinary
prudential doctrines” such as waiver, plain error, and harmless
error).
        If the computations, even if erroneous, lead the district
judge to consider a reasonable range of sentences that is not a
marked deviation from the national estimate provided by the
correct Guidelines range, they have fulfilled their proper role of
promoting national uniformity. They have also played a role that
satisfies § 3553(a)(4)’s requirement that the sentencing court

                                38
review “the kinds of sentence and the sentencing range” for the
offense. The Supreme Court confirmed that appellate courts can
continue to require a strong showing to sustain a final sentence
that is imposed outside the Guidelines range, Gall, 128 S. Ct. at
597, but that justification can be supplied by the strength of the
reasoning in the court’s discussion of the § 3553(a) factors. In its
final ruling, the District Court’s proper use of all the § 3553
factors to reach the ultimate sentence can make insignificant its
errors in the Guidelines calculation.
                                 IV.
        This case presents a situation where an insignificant
miscalculation in the Guidelines computation did not result in an
unreasonable sentence. The sentence was not simply within the
zone of reasonableness around the proper Guidelines range, but
was in fact within that range itself, albeit at its extreme. See Rita,
127 S. Ct. at 2463 (noting that a judge’s choice of a sentence
within the Guidelines range means that his judgment accords with
that of the Sentencing Commission and “increases the likelihood
that the sentence is a reasonable one.”); see also United States v.
Cooper, 437 F.3d. 324, 332 (3d Cir. 2006) (“A sentence that falls
within the guidelines range is more likely to be reasonable than
one outside the guidelines range.”).
        The District Court, in recognizing that the Guidelines were
“still . . . a factor that Court [sic] is required to consider in
imposing sentence,” gave them the “respectful consideration” they
were due. Kimbrough, 128 S. Ct. at 570. Because the District
Court conducted a thorough analysis of the § 3553(a) factors and
evaluated the characteristics applicable to the defendant and his
offense, the erroneous Guidelines calculation did not significantly
infect the final sentencing determination. The final 46-month
sentence, therefore, easily satisfies a reasonableness review.
         Accordingly, I would affirm the judgment of the District
Court.


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