                                       No. 04-2451
                                File Name: 05a0535n.06
                                  Filed: June 22, 2005



                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT




UNITED STATES OF AMERICA,                        )
          Plaintiff-Appellee,                    )
v.                                               )      ON APPEAL FROM THE
                                                 )      UNITED STATES DISTRICT
DANIEL MORRIS BROUCEK,                           )      COURT FOR THE WESTERN
          Defendant-Appellant.                   )      DISTRICT OF MICHIGAN




BEFORE: MERRITT, DAUGHTREY, CIRCUIT JUDGES; AND PHILLIPS, DISTRICT

JUDGE1



              PHILLIPS, DISTRICT JUDGE. Defendant-Appellant, Daniel Morris Broucek,

appeals from a sentence imposed pursuant to his guilty plea for mail fraud and interstate

travel or transportation in aid of racketeering. He contends that the district court imposed

an effective prison sentence of 84 months, which exceeded the applicable guideline range

of 63-78 months for the offenses. In light of the Supreme Court’s decision in United States

v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), we VACATE the decision of the district

court and REMAND for resentencing.


       1
         Honorable Thomas W. Phillips, United States District Judge for the Eastern
District of Tennessee, sitting by designation.
                                       Background

              Broucek pleaded guilty to charges of mail fraud and interstate travel or

transportation in aid of racketeering in connection with a pyramid scheme in which he

collected approximately $140,000,000 from more than 700 victims over a seven-year

period. When the scheme eventually collapsed in 2002, authorities estimated that the

actual losses to individuals totaled $48,495,523. Because approximately $6,000,000 was

recovered from the defendant’s bank account, the government and the defendant agreed

that the losses for sentencing purposes equaled $42,495,523.



              Under the relevant provisions of the United States Sentencing Guidelines in

effect at the time, such a loss called for increasing the base offense level of 6 by 22 levels

to 28. See U.S.S.G. §§ 2B1.1(a) and (b)(1)(L) (2001).2 An additional four levels were

added because of the number of victims involved, see U.S.S.G. § 2B1.1(b)(2)(B), before

a total of six levels were subtracted for acceptance of responsibility, see U.S.S.G. § 3E1.1,

and for providing substantial assistance to the authorities, see U.S.S.G. § 5K1.1. The

government and the defendant thus agreed that Broucek was subject to a sentence

between 63 and 78 months as an Offense Level 26, Criminal History Category I offender.




       2
         The 2001 version of the guidelines in effect at the time of the crime appear to
have been used by the district court in sentencing because of ex post facto problems
with the increased sentences permitted under the 2004 version of the guidelines in
effect at the time of Broucek’s sentencing.

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              At the sentencing hearing, however, the district court imposed consecutive

sentences of 48 and 36 months on the defendant, resulting in an effective prison term of

84 months. Broucek appeals, asserting that such a sentence exceeds the guideline range.



                                          Analysis

              The defendant’s sole allegation of error is that the district court was required

to impose a prison term within the 63-78 month range provided by the Guidelines in effect

at the time of his sentencing. However, while this case was pending on appeal before this

court, the Supreme Court issued its decision in United States v. Booker. In Booker, the

Supreme Court ruled that Guideline provisions can no longer be considered mandatory, but

rather, must be treated as being advisory only. See Booker, 125 S. Ct. at 756-57.

Consequently, the district court was not bound by the 63-78 month sentencing range

previously in effect as long as the court “considered” that range, in conjunction with other

factors listed in 18 U.S.C. § 3553(a), and the sentence actually imposed is “reasonable”.

Id. The rule announced in Booker was explicitly made applicable to cases pending before

the federal appellate courts at the time the decision was announced. Id. at 769.



              The government argues that a remand is not necessary because the district

court clearly did not consider the Guideline range mandatory, as evidenced by its decision

to impose a sentence of 84 months, a sentence in excess of the Guideline range. In

addition, the government points out that the district judge had discretion in how far to depart




                                              -3-
downward granting the government’s motion under U.S.S.G. § 5K1.1 and concluded that

a three-point level departure was appropriate.



              However, the government’s arguments miss the point that even though the

district judge sentenced Broucek above the applicable Guideline range, the district judge

began his analysis with the understanding that the Guidelines were mandatory. The district

judge determined that a sentence of 84 months was justified because he chose not to

group the offenses, instead imposing a sentence for each offense to be served

consecutively. Thus, it appears that the district judge felt obligated to adhere to Guideline

directives in determining Broucek’s sentence.



              Because this case was pending on direct review when Booker was decided,

the holdings of Booker are applicable in the present case. In light of Booker, and the fact

that the district court sentenced Broucek under the now-erroneous impression that the

Guidelines were mandatory, we are convinced that the proper course of action is to vacate

Broucek’s sentence and remand for resentencing. See United States v. Daniel, 398 F.3d

540, 547-51 (6th Cir. 2005); United States v. Barnett, 398 F.3d 516, 528-30 (6th Cir. 2005).

On remand, “we encourage the sentencing judge to explicitly state his reasons for applying

particular Guidelines, and sentencing within the recommended Guidelines range, or in the

alternative, for choosing to sentence outside that range. Such a statement will facilitate

appellate review as to whether the sentence was ‘reasonable.’” United States v. Jones,

399 F.3d 640, 650 (6th Cir. 2005); see also Booker, 125 S. Ct. At 765 (noting that appellate


                                             -4-
review of a district court sentence is for reasonableness); United States v. Webb, 403 F.3d

373 (6th Cir. 2005) (engaging in reasonableness review, but refusing to “define rigidly at this

time either the meaning of reasonableness or the procedures that a district judge must

employ in sentencing post-Booker”).



                                        Conclusion

              Therefore, for the foregoing reasons, we VACATE Broucek’s sentence and

REMAND for resentencing consistent with the Supreme Court’s decision in United States

v. Booker and with this opinion.




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