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

No. 07-3773
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,
                                 v.

JEFFREY P. SCHROEDER,
                                              Defendant-Appellant.
                         ____________
          Appeal from the United States District Court for
         the Northern District of Illinois, Eastern Division.
              No. 05 CR 491—John W. Darrah, Judge.
                         ____________
      ARGUED MAY 29, 2008—DECIDED AUGUST 5, 2008
                         ____________


 Before CUDAHY, POSNER and TINDER, Circuit Judges.
  CUDAHY, Circuit Judge. Jeffrey Schroeder pleaded
guilty to one count of tax preparer fraud and was sen-
tenced to 36 months’ imprisonment. Schroeder appeals,
arguing that the district court deprived him of his due
process right to a fair sentencing hearing, used the
wrong burden of proof in applying a sentencing enhance-
ment based on relevant conduct and did not give ade-
quate consideration to his argument for a below-guideline
sentence pursuant to 18 U.S.C. § 3553(a). Because
Schroeder’s sentencing hearing was marred by several
serious errors, we vacate his sentence and remand, noting
2                                                No. 07-3773

that this marks the second time we have sent Schroeder’s
case back to the district court for resentencing.


                      I. Background
  Schroeder operated a tax preparation business out of
his Illinois home. In 2005 he was indicted and charged
with 21 counts of tax preparer fraud in violation of 26
U.S.C. § 7206(2). In January 2006, he pleaded guilty to one
count of tax preparer fraud that caused a tax loss to the
United States Treasury of $6,556. In his plea agreement,
Schroeder admitted to preparing tax returns that in-
cluded information he knew to be false about his clients’
itemized deductions. Itemized deductions are listed on
federal income tax form Schedule A. By fraudulently
overstating his clients’ Schedule A deductions, Schroeder
was able to decrease his clients’ reported taxable income,
yielding greater refunds than they were in fact entitled to.
Schroeder also admitted that he had assisted in the prepa-
ration of at least 52 fraudulent tax returns for tax years
1999, 2000 and 2001. He also admitted that the false tax
returns resulted in a total loss to the United States Treasury
of at least $161,116. But at his change of plea hearing,
he asserted that the $161,116 tax loss figure in the plea
agreement was incorrect. The district court determined
that the actual amount of loss would be determined at
sentencing.
  In April 2006, the United States Probation Office pre-
pared a Pre-Sentence Investigation Report (PSR), which
assigned Schroeder a criminal history category of III. The
PSR based Schroeder’s offense level in part on a tax loss of
$428,555—the $161,116 that was included in the plea
agreement as well as an additional loss of $267,439. This
No. 07-3773                                               3

additional amount was based on Internal Revenue Service
(IRS) correspondence audits of 25 of Schroeder’s clients.
The IRS concluded that Schroeder had overstated or
misrepresented deductions on 52 tax returns prepared on
behalf of the audited clients, resulting in a tax loss of
$267,439. The results of the audits were summarized in a
two-page spreadsheet that was provided to the Proba-
tion Office. The spreadsheet included the initials of the
taxpayers, the year of the challenged return, the type of
fraudulent itemized deduction, the amount of the fraudu-
lently increased refund and the adjustment amount
associated with the fraudulent itemized deductions.
  The Tax Table in U.S.S.G. § 2T4.1 provides that a tax
loss of over $400,000 corresponds to an offense level of 20.
The $161,116 amount of loss that was originally included in
the plea agreement corresponds to an offense level of 16.
The PSR increased Schroeder’s base offense level due to
specific offense characteristics and reduced it due to
Schroeder’s cooperation and acceptance of responsibility.
After accounting for these adjustments, the PSR concluded
that the total offense level was 19. An offense level of 19
and a criminal history category of III yielded a sen-
tencing range of 37 to 46 months.
  Schroeder filed a sentencing memorandum challenging
the inclusion of the additional $267,439 in the amount of
loss calculation on the grounds that the materials sup-
porting the additional tax loss had not been made avail-
able to the defense. He argued that his base offense level
should be based on a tax loss of $161,116. After accounting
for adjustments, using the lower tax loss amount would
result in a total offense level of 15 and a sentencing range
of 24 to 30 months. He also asserted that his family cir-
cumstances justified a sentence below the guideline
4                                               No. 07-3773

sentencing range. In particular, he claimed that his incar-
ceration would impose a hardship on his adopted daugh-
ter, who was born with various medical problems
arising from her biological mother’s drug abuse. The
government filed a response to Schroeder’s sentencing
memorandum in which it asserted that although the
individual tax returns underlying the additional tax loss
had not been provided to defense counsel, the spread-
sheet had been given to the defense.
  At Schroeder’s sentencing, the district court heard
testimony from IRS Special Agent Zagota, who testified
that, in the course of the criminal investigation, he had
interviewed witnesses to determine the original tax loss
of $161,116. Although Special Agent Zagota was not
involved in the civil audits, he explained that the addi-
tional tax loss was ascertained via correspondence audits,
in which the IRS sent letters to Schroeder’s clients inviting
them to provide documentation supporting the itemized
deductions on their tax returns. If they could not justify
their deductions, their tax returns were adjusted accord-
ingly. Special Agent Zagota also opined that the total
amount of loss was a conservative figure given that
Schroeder had prepared thousands of tax returns in 2000
and 2001 and that over 90 percent of those returns
claimed refunds. The court accepted the additional
$267,439 tax loss amount, declined to impose a below-
guidelines sentence based on Schroeder’s family situation
and sentenced Schroeder to 42 months’ imprisonment
and one year supervised release.
  Schroeder filed a notice of appeal on November 22, 2006,
but a few months later, he and the government submitted
a joint motion for summary reversal and remand based
on the fact that the 42-month sentence imposed by the
No. 07-3773                                               5

district court exceeded the statutory maximum of 36
months. The motion stated:
    The parties agree that it would be a waste of their
    resources and of the Court’s resources to proceed
    through briefing and consideration of an appeal for a
    case that must be reversed and remanded for
    resentencing.
    Wherefore, it is respectfully requested that the judg-
    ment in this case be reversed and that the case be
    remanded to the district court for resentencing.
We granted the motion in a brief order, summarily revers-
ing and remanding the case “for the limited purpose of
resentencing.” R. 60.
  On remand, Schroeder moved for an order requiring the
government to produce the tax returns on which the
additional amount of loss was based and for an order
authorizing defense counsel to obtain expert services
for the resentencing hearing. These motions were granted
and the defense reviewed the underlying documents
with expert assistance. In June 2007, Schroeder sub-
mitted a supplemental sentencing memorandum chal-
lenging the $267,439 additional tax loss on the grounds
that the civil audits did not represent a reliable method of
assigning criminal liability. Schroeder argued that the
purpose of the civil audit was to collect unpaid taxes and
that it was not designed to attribute responsibility for
the improper deductions. Some taxpayers did not respond
to the IRS’s invitation to defend their deductions and in
those cases, he asserted, the IRS assumed that Schroeder
was probably responsible for the false information. He
pointed out that one taxpayer admitted that she had
overstated her business expenses but that the govern-
6                                                 No. 07-3773

ment included the full amount of the liability resulting
from her misrepresentation in calculating Schroeder’s
amount of loss. In addition, Schroeder again argued that
his unique family circumstances weighed in favor of a
lower sentence. He informed the court that he had been
the primary caregiver for his adopted daughter while
his wife worked outside the home. He stated that after
his incarceration, his daughter had to be placed in day-
care. Being in daycare is a risky proposition for the
child because she has a weak immune system that
makes her more vulnerable to infection than most children.
In support of this argument for leniency, Schroeder
submitted a letter from his daughter’s pediatrician
stating that she should not be placed in daycare.
  Schroeder’s resentencing hearing was held on November
6, 2007 and his tax loss and family circumstances argu-
ments did not fare any better the second time around. At
the commencement of the hearing, the judge stated that
he had reviewed the memoranda submitted by the parties
and determined that “the $267,000 amount[ ] is based on
information that is of sufficient reliability that can properly
be considered under the guideline provisions” and
thus, the total amount of loss was $428,555. Schroeder’s
attorney argued that many taxpayers who were the sub-
ject of a civil audit did not contest the deductions chal-
lenged by the IRS and that the audits were performed
to collect unpaid taxes, not to assign liability for the
improper deductions. The court rejected Schroeder’s
argument and maintained its initial tax loss determination.
Addressing Schroeder’s family circumstances argument,
the court stated that because Schroeder’s criminal acts
caused his difficult family situation, family circumstances
did not constitute a valid basis for imposing a lower
No. 07-3773                                                 7

sentence. After reviewing the factors set forth in 18 U.S.C.
§ 3553(a), the court imposed a sentence of 36 months’
imprisonment.


                        II. Analysis
  Before we reach the merits of Schroeder’s challenges
to his sentence, we briefly address the government’s
contention that the district court committed plain error in
considering Schroeder’s arguments on the amount of loss
issue and his family circumstances on remand. It is the
government’s position that Schroeder waived these issues
by moving to remand his original sentence based solely
on the fact that it exceeded the statutory maximum. The
government argues that the issues Schroeder now raises
fall outside the scope of our remand and the district
court should not have considered them. Because the
government did not object to the district court’s reopening
of the sentencing issues on remand, it asserts that we
should review the court’s decision to revisit these issues
for plain error. “Plain error exists when there is an error
which is clear or obvious and which affects substantial
rights.” United States v. Otis, 107 F.3d 487, 489 (7th Cir.
1997). An error affects substantial rights if it “seriously
affect[s] the fairness, integrity or public reputation” of the
proceedings. United States v. Van Allen, 524 F.3d 814,
819 (7th Cir. 2008) (quoting United States v. Jumah, 493 F.3d
868, 875 (7th Cir. 2007)) (alteration in original).
  We are unpersuaded by the government’s plain error
argument. First, it was not erroneous for the court to
consider the amount of loss or family circumstances
issue on remand. Schroeder’s case was not subject to
either of the primary limitations on the scope of a remand.
8                                                No. 07-3773

The first limitation is that “any issue that could have
been but was not raised on appeal is waived and thus
not remanded.” United States v. Husband, 312 F.3d 247, 250
(7th Cir. 2002). When we granted the parties’ joint motion
for summary reversal, Schroeder’s first appeal was trun-
cated before he had the opportunity to challenge the
sentencing court’s rulings on the issues he now raises. This
fact distinguishes his case from others where we have
declined to allow a defendant to “use the accident of a
remand to raise in a second appeal an issue that he could
just as well have raised in the first appeal.” United States
v. Parker, 101 F.3d 527, 528 (7th Cir. 1996); see also United
States v. Swanson, 483 F.3d 509, 514 (7th Cir.), cert. denied,
128 S. Ct. 455 (2007) (same).
   The second major limitation on the scope of a remand
is that “any issue conclusively decided by this court on
the first appeal is not remanded.” Husband, 312 F.3d at
251. In their joint motion to this court, the parties stipu-
lated that it would be a waste of the court’s time to pro-
ceed through briefing and argument when the case obvi-
ously had to be remanded for resentencing. In response
to the parties’ motion, we issued a brief order that neither
explicitly nor implicitly constrained the district court’s
authority to address contested issues at resentencing. In
the absence of a mandate limiting the scope of
resentencing, it was reasonable for the district court to
revisit disputed sentencing issues. See Parker, 101 F.3d at
528 (“[T]he scope of the remand is determined not by
formula, but by inference from the opinion as a whole.”);
cf. United States v. Polland, 56 F.3d 776, 778 (7th Cir. 1995)
(where our ruling specifically limited mandate on
resentencing to particular sentencing issue, the district
court was precluded from revisiting other sentencing
No. 07-3773                                                  9

issues on remand). Moreover, even if we assume that
the district court erred in reopening sentencing issues
following our remand, the government has not estab-
lished that any substantial rights were affected. Thus,
we take up Schroeder’s arguments confident that con-
sidering them will not cast serious doubts on the integrity
of these proceedings.


A. Amount of loss
  Schroeder appeals the district court’s determination
that he was responsible for a total tax loss of $428,555,
arguing that the court deprived him of his right to a fair
sentencing hearing and did not hold the government to its
burden of proof. Amount of loss must be determined “on
the basis of the conduct of conviction and relevant con-
duct.” United States v. Frith, 461 F.3d 914, 917 (7th Cir.
2006). “[R]elevant conduct must be criminal or unlawful
conduct . . . .” Id. The government has the burden of
proving losses attributable to relevant conduct by a pre-
ponderance of the evidence. Id. In this case, the govern-
ment bore the burden of proving, by a preponderance of
the evidence, that the unpaid taxes discovered through
the civil audit were attributable to Schroeder’s criminal
or unlawful conduct. The amount of tax loss need not be
determined with precision and a reasonable estimate
will suffice. U.S.S.G. § 2T1.1 cmt. 1; see also Frith, 461 F.3d
at 917 (discussing amount of loss determination for of-
fenses involving fraud or deceit). In considering rele-
vant conduct, a district court “may consider relevant
information without regard to its admissibility under the
rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to sup-
port its probable accuracy.” U.S.S.G. § 6A1.3(a). This rule
10                                                 No. 07-3773

applies to facts asserted in the PSR as well, which a
court may adopt “as support for its findings and conclu-
sions” if they “bear sufficient indicia of reliability to
support their probable accuracy.” United States v. Taylor,
72 F.3d 533, 543 (7th Cir. 1995) (quoting United States v.
Salinas, 62 F.3d 855, 859 (7th Cir. 1995)).
  Schroeder’s resentencing hearing was flawed from the
outset. The district court commenced the hearing by
announcing its findings on the amount of loss before
allowing Schroeder’s attorney to present any argument.
The court stated that after reviewing the materials sub-
mitted by Schroeder and the government, including the
PSR and sentencing memoranda submitted by Schroeder’s
attorney:
     I do find that the additional amount, the $267,000
     amount, is based on information that is of sufficient
     reliability that can properly be considered under the
     guideline provisions.
     So I find that the total amount of loss is as set out in the
     presentence investigation report.
Although a district court is not always required to provide
an evidentiary hearing in which the parties can argue
sentencing issues, United States v. Cantero, 995 F.2d 1407,
1413 (7th Cir. 1993), the court is required to “allow the
parties’ attorneys to comment on the probation officer’s
determinations and other matters relating to an appropri-
ate sentence.” FED. R. CRIM. P. 32(i)(1)(C). The district
court announced its findings as to the amount of tax loss—
a critical sentencing determination—before Schroeder’s
attorney had an opportunity to comment on the issue.
Schroeder’s attorney had to interrupt the court’s recitation
of its loss findings to indicate that he intended to present
testimony and argument disputing the amount of loss.
No. 07-3773                                                11

Although the court allowed him to offer evidence in the
form of an offer of proof, whether the court gave the
defense’s arguments the due consideration they deserved
is questionable to say the least in light of the court’s
conclusive pronouncement of its findings at the beginning
of the hearing. Indeed, the sentencing transcript sug-
gests the court’s impatience with the defense’s challenges
to the alleged tax loss. Although due process does not
guarantee a perfect sentencing hearing, it does guarantee
a fair one. United States v. Agyemang, 876 F.2d 1264, 1271
(7th Cir. 1989). Here, the fact that the district court pre-
judged the tax loss issue undermined the fairness of
Schroeder’s hearing.
  That the district judge appears to have commenced
resentencing with his mind made up about the tax loss
issue may explain his apparent unwillingness or
inability to understand defense counsel’s attempt to clear
up serious confusion regarding the government’s burden
of proof. The court’s statements at resentencing strongly
suggest that it confused the standard for the admissibility
of evidence at sentencing with that for proving relevant
conduct, a very serious error. As we have already noted,
it is well established that the government must prove
amount of loss by a preponderance of the evidence. See
United States v. Omole, 523 F.3d 691, 701 (7th Cir. 2008). The
preponderance of the evidence standard requires “that
the fact-finder believe that the existence of a fact is more
probable than the non-existence of that fact.” United States
v. Smith, 267 F.3d 1154, 1161 (D.C. Cir. 2001). In determin-
ing whether the government has met its burden of proof
at sentencing, a court may consider information that
would not have been admissible at trial if it has “suf-
ficient indicia of reliability to support its probable accu-
racy.” United States v. Artley, 489 F.3d 813, 821 (7th Cir.
12                                              No. 07-3773

2007). But the presumed accuracy of information that
has “sufficient indicia of reliability” does not relieve the
court of its responsibility to weigh the proffered evidence
and determine whether the government has proven that
the existence of a disputed fact is more probable than not.
  The court’s apparent confusion is evident on review
of the sentencing transcript. After Schroeder’s attorney
began to argue that the results of the civil audit did not
establish Schroeder’s culpability for the improper deduc-
tions, the court stated:
     I agree with you, that if the standard here were proof
     by a preponderance of the evidence, that that might
     pose some problems. I also agree with you that there
     might be a difficulty if strict Rules of Evidence were
     in effect. But I don’t think the sentencing guidelines
     require that.
     ****
     I think the government bears the burden of proving
     certain components of the sentencing procedure by a
     preponderance of the evidence, but your focus is on
     the quality of the information the Court is using to
     determine the—
Schroeder’s attorney then attempted to clarify that the
government must prove by a preponderance of the evi-
dence that the improper deductions are “attributable to Mr.
Schroeder rather than to taxpayer A or taxpayer B, who
may have submitted bogus claims or bogus deductions.”
At that point, the court stated:
     Section 6A1.3 of the guidelines manual says as follows:
     “When any factor important to the sentencing determi-
     nation is reasonably in dispute, the parties shall be
No. 07-3773                                                 13

    given an adequate opportunity to present information
    to the Court regarding that factor.
    In resolving any dispute concerning a factor important
    to the sentencing determination, the Court may con-
    sider relevant information without regard to its admis-
    sibility under Rules of Evidence applicable to trial,
    provided the information has sufficient indicia of
    reliability to support its probable accuracy.” Now
    that’s the standard that is in effect here.
    I have read everything that’s been submitted, I looked
    at the spreadsheet, I looked at the information that
    I ordered produced to the defendant. I’ve consulted
    everything that is before me. And I find that the
    information provided has sufficient indicia of reli-
    ability to support its probable accuracy.
    I understand your argument. I understand that in a
    civil trial under Rules of Evidence that this information
    might not be admissible, but for purposes of determin-
    ing the total amount of loss as relevant conduct, I
    find that it does meet that standard.
Schroeder’s attorney again attempted to clarify that the
defense was not questioning the reliability of the informa-
tion but was trying to question “whether the government
has proven that it’s attributable to Mr. Schroeder, which is
the standard for relevant conduct.” The court replied:
    Okay. I find that based on that standard, that that
    information has sufficient indicia of reliability that it’s
    properly considered in determining the relevant
    conduct and the total offense level.
In so stating, the court seemed to suggest that the govern-
ment had met its burden of proof merely by submitting
14                                             No. 07-3773

admissible evidence, as opposed to proving the amount
of the tax loss by a preponderance of the evidence. Indeed,
the court never found that the government proved the
tax loss by a preponderance of the evidence.
   The court’s apparent confusion is particularly worrisome
given that Schroeder has challenged persuasively the
propriety of using the civil audit to attribute criminal
liability. As he attempted to point out to the court, the
civil audit revealed only that the clients of Schroeder
who were audited had overstated their deductions. The
audit did not purport to attribute responsibility for the
improper deductions. Although a district court may rely
on information in PSRs and in sentencing memoranda
where the information is based on sufficiently reliable
information, Taylor, 72 F.3d at 543, Schroeder was not
attempting to argue that the summary of the civil audit
results was inaccurate or misrepresented the amount of
improper refunds that had been distributed to Schroeder’s
clients. The question Schroeder tried to raise was whether
the PSR and the correspondence audit provided any
proof of Schroeder’s culpability for the false information
included on the tax returns that were the subject of the
civil audit.
   The government contends that the civil audit is circum-
stantial evidence of Schroeder’s culpability for the addi-
tional tax loss amount, pointing out that almost all of the
taxpayers who were audited told IRS agents that they
could not provide documentation supporting the
itemized deductions claimed on their tax returns. The
government also notes that the inaccurate deductions on
the audited returns were of the same type that Schroeder
admitted to having falsified. But these facts do not make
it more likely that the overstated deductions were due to
No. 07-3773                                               15

Schroeder’s criminal conduct than to a mistake or fraud
on the part of his taxpayer clients. The district court
treated the underpayments that were detected in the
audit as frauds attributable to Schroeder without conduct-
ing any analysis as to what evidence proved that
Schroeder’s unlawful conduct caused the underpayments.
We attribute this omission to the court’s apparent belief
that if evidence is admissible it proves the truth of the
proposition for which it is being offered. The court’s
failure to hold the government to its burden of proof is a
serious error—in this case, Schroeder’s total offense level
was increased from 15 to 19 due to the court’s tax loss
determination—and it requires us to remand for
resentencing.


B. Family circumstances
  Schroeder also contends that the court erred in giving
short shrift to his argument that his incarceration imposed
an extraordinary hardship on his family. We review a
court’s application of the Sentencing Guidelines de novo.
United States v. Warren, 454 F.3d 752, 762 (7th Cir. 2006).
After a sentencing court calculates the correct advisory
guidelines range, it “must apply the factors set forth in
18 U.S.C. § 3553(a) in determining whether to apply a
sentence within the advisory guidelines range.” United
States v. Miranda, 505 F.3d 785, 791 (7th Cir. 2007) (citing
United States v. Robinson, 435 F.3d 699, 700-01 (7th Cir.
2006)). Section 3553(a) directs the court to include the
history and characteristics of the defendant among the
factors it weighs in determining the sentence it will impose.
A district court may pass over in silence frivolous argu-
ments for leniency, but where a defendant presents an
16                                                No. 07-3773

argument that is “not so weak as not to merit discussion,”
a court is required to explain its reason for rejecting that
argument. Id. at 792 (quoting United States v. Cunningham,
429 F.3d 673, 679 (7th Cir. 2005)); see also Rita v. United
States, ___U.S.___, 127 S. Ct. 2456, 2468-69, 168 L. Ed. 2d 203
(2007) (by explaining reasons for rejecting arguments for
higher or lower sentence, sentencing courts “assure[ ]
reviewing courts (and the public) that the sentencing
process is a reasoned process”). A short explanation will
suffice where the context and record make clear the
reasoning underlying the district court’s conclusion. Id. at
2469. But “[a] judge who fails to mention a ground of
recognized legal merit (provided it has a factual basis)
is likely to have committed an error or oversight.”
Cunningham, 429 F.3d at 679.
  A defendant’s extraordinary family circumstances can
constitute a legitimate basis for imposing a below-guide-
lines sentence. Sentencing Guideline 5H1.6 provides that
“family ties and responsibilities are not ordinarily
relevant in determining whether a departure may be
warranted,” but a district court may impose a below-
guidelines sentence “once it finds that a defendant’s family
ties and responsibilities . . . are so unusual that they may
be characterized as extraordinary.” United States v. Canoy,
38 F.3d 893, 906 (7th Cir. 1994); see also United States v.
Jaderany, 221 F.3d 989, 996 (7th Cir. 2000). Although “[t]he
concept of departures has been rendered obsolete in post-
Booker sentencing . . . the district court may apply those
departure guidelines by way of analogy in analyzing the
section 3553(a) factors.” Miranda, 505 F.3d at 792.
  To support his extraordinary family circumstances
argument, Schroeder’s attorney elicited testimony from
No. 07-3773                                                17

Mrs. Schroeder. Mrs. Schroeder testified that the couple’s
adopted daughter has a compromised immune system
and that she is particularly vulnerable to illness, making
daycare an implausible childcare option. Mrs. Schroeder
then testified that because Schroeder worked from home
before his incarceration, he had been able to look after
their daughter. She described her attempts to find suit-
able care for their daughter since Schroeder’s incarcera-
tion. After Mrs. Schroeder finished testifying, the court
stated:
    That’s an unfortunate thing that’s happened to your
    family, regarding the health of your daughter, but the
    fact that Mr. Schroeder is not there to assist is some-
    thing based on conduct Mr. Schroeder chose to commit.
    And I expressly reject that as a consideration that
    should somehow mitigate his sentence.
The government asserts that Schroeder’s family circum-
stances are not sufficiently unusual to warrant a below-
guidelines sentence. This may or may not be what was
actually driving the district court’s rejection of Schroeder’s
argument. We do not know one way or the other because
the district court did not address the merits of Schroeder’s
argument at all. Instead, the court brushed it aside and
seemed to deem any discussion of the hardship to
Schroeder’s family as an irrelevant digression. In doing
so, the court has left us “in serious doubt whether the
judge connected the facts relating to the statutory factors
to the sentence he imposed[.]” Cunningham, 429 F.3d at 676.
   The court’s observation that Schroeder’s criminal con-
duct was the cause of the alleged hardship to his daughter
is an obvious and not dispositive one, since the culpability
of a defendant who appears for sentencing is a given.
18                                              No. 07-3773

When a defendant presents an argument for a lower
sentence based on extraordinary family circumstances, the
relevant inquiry is the effect of the defendant’s absence on
his family members. See, e.g., United States v. Johnson,
964 F.2d 124, 129 (2d Cir. 1992) (“The rationale for a
downward departure here is not that [the defendant’s]
family circumstances decrease her culpability, but that
we are reluctant to wreak extraordinary destruction on
dependents who rely solely on the defendant for their
upbringing.”). The defendant’s responsibility for the
adverse effects of his incarceration on his family is not the
determinative issue. If it were, there would never be
an occasion on which the court would be justified in
invoking family circumstances to impose a below-guide-
lines sentence. The court was required to consider
Schroeder’s family circumstances argument and provide
an adequate analysis of how much weight, if any, it
should command. The fact that the consequences of
incarceration are attributable to his own misconduct may
be a factor in the analysis but it is not the sole factor nor
is it dispositive. Thus, on remand the court should con-
sider whether Schroeder’s family circumstances are a
mitigating factor.


                     III. Conclusion
  For the foregoing reasons, we VACATE Schroeder’s
sentence and REMAND for resentencing. Circuit Rule 36
shall apply on remand.




                    USCA-02-C-0072—8-5-08
