                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 07a0499p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                    X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                     -
                                                     -
                                                     -
                                                         No. 07-5129
          v.
                                                     ,
                                                      >
 ALANDUS T. LANE,                                    -
                            Defendant-Appellant. -
                                                    N
                      Appeal from the United States District Court
                   for the Western District of Tennessee at Memphis.
                  No. 06-20222—Jon Phipps McCalla, District Judge.
                                       Submitted: December 14, 2007
                                 Decided and Filed: December 20, 2007
                 Before: KEITH and CLAY, Circuit Judges; HOOD, District Judge.*
                                             _________________
                                                   COUNSEL
ON BRIEF: T. Clifton Harviel, Jr., HARVIEL LAW OFFICE, Memphis, Tennessee, for Appellant.
Camille R. McMullen, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for
Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        CLAY, Circuit Judge. Defendant Alandus T. Lane appeals his sentence of 68 months
imprisonment, imposed after his conviction for wire fraud, arguing that the district court erroneously
failed to calculate his advisory Guidelines sentence to credit nine months which he has already
served pursuant to an undischarged sentence. According to Defendant, even though the district court
correctly recognized the Guidelines as advisory and departed upward from the Guidelines at
sentencing, the district court still committed reversible error under 18 U.S.C. § 3742(f) by
calculating an incorrect advisory Guidelines sentence. Because the record reflects that Defendant’s
sentence was not imposed “‘as a result of’ a misapplication of the Guidelines,” we AFFIRM the
sentence of 68 months. Williams v. United States, 503 U.S. 193, 203 (1992) (quoting § 3742(f)(1)).



        *
          The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by
designation.


                                                         1
No. 07-5129                         United States v. Lane                                       Page 2


                                    STATEMENT OF FACTS
         Defendant Alandus T. Lane was a ringleader in a wire fraud scheme in which Defendant and
his co-conspirators would trick their victims into revealing personal identifiers and then use this
information to fraudulently make purchases or transfer money out of the victims’ credit accounts.
On July 6, 2005, Defendant was indicted, along with three other defendants, on 23 counts related
to this scheme. Defendant pled guilty to three counts of this indictment, and was sentenced to 51
months imprisonment.
        Subsequent to this conviction, the prosecution discovered that Defendant had recruited an
additional co-conspirator into the same wire fraud scheme. On June 14, 2006, a federal grand jury
returned a second indictment against Defendant and this newly discovered co-defendant which
encompassed additional acts of wire fraud committed by the new co-defendant. Defendant pled
guilty to one count of this indictment, and received a sentence of 68 months, to run concurrently
with his prior sentence.
        In imposing this sentence, the district court first noted that Defendant has numerous prior
criminal convictions, resulting in 31 criminal history points under the Guidelines. As the district
court noted, only 13 points are required to place a defendant in the highest criminal history category.
While the proper Guidelines sentence for a person who committed Defendant’s offense and who is
in the highest criminal history category is 41 to 51 months, the sentencing judge believed that a
person with Defendant’s unusually long criminal record should receive a longer sentence.
Accordingly, the district court determined Defendant’s sentence by applying an additional four point
enhancement to Defendant’s offense level, resulting in a sentencing range of 63 to 78 months.
Relying upon this enhanced range, the sentencing judge determined 68 months to be the appropriate
sentence.
         After the sentencing judge explained this rationale, the probation officer reminded him that
Defendant had already served more than nine months of his sentence for his previous wire fraud
conviction, and that these nine months could be credited to Defendant’s sentence in the instant case,
thus resulting in a final sentence of only 59 months. While the sentencing judge admitted to having
“second thoughts” about whether or not to apply this credit, he ultimately concluded that, because
of the likelihood of recidivism in this case, a sentence of 68 months best served 18 U.S.C. § 3553’s
goal of protecting the public from further crimes of the defendant. (J.A. 42.) Furthermore, the
sentencing judge indicated that he had read the presentence report in this case, which correctly
calculated the Guidelines sentence, but thought that such a sentence was “problematic,” and “really
won’t meet all the requirements or all the statutory factors as well as the sentence that I have already
articulated.” (J.A. 41-42.) Accordingly, the district court did not credit Defendant the nine months
he had already served and ultimately imposed an above-Guidelines sentence of 68 months.
                                           DISCUSSION
                                         Standard of Review
        A district court’s interpretation of the advisory Guidelines is reviewed de novo. United
States v. Duckro, 466 F.3d 438, 444 (6th Cir. 2006). Nevertheless, once the advisory Guidelines
sentence has been determined, this advisory sentence is only one of several factors which a district
court must consider at sentencing. § 3553(a). The question of whether the sentence ultimately
imposed properly accounts for the factors listed in § 3553(a) is reviewed for reasonableness.
Duckro, 466 F.3d at 444. Reasonableness has two components: substantive and procedural, both
of which are reviewed for abuse of discretion. Gall v. United States, — S.Ct. —, No. 06-7949, 2007
WL 4292116, at *7 (Dec. 10, 2007). When reviewing a sentence for procedural reasonableness,
we must hold that a district judge abused his or her discretion if he or she “committed [a] significant
procedural error, such as failing to calculate (or improperly calculating) the Guidelines range,
No. 07-5129                                 United States v. Lane                                                  Page 3


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.”1 Id.
                                                        Analysis
        In weighing Defendant’s claim, it is worth noting what he does not argue on appeal.
Defendant does not allege that his 68 month sentence is substantively unreasonable. Nor does
Defendant raise a constitutional challenge to the prosecution’s decision to re-indict him after he had
already been tried and convicted for crimes arising from the same criminal transaction. Rather,
Defendant’s sole claim on appeal is that the district court committed reversible error when it failed
to calculate the advisory Guidelines sentence in this case   by failing to credit him the nine months
he had already served on his prior wire fraud conviction.2 According to Defendant, “[e]ven though
the Supreme Court declared the Guidelines advisory in Booker, the Circuit is still required to remand
for resentencing if the District Court misapplies the Guidelines. (Defendant’s Br. at 13.) We
disagree.
        In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court declared
unconstitutional § 3742(e) which requires a Court of Appeals to treat the Guidelines as mandatory.
Id. at 245. Nevertheless, “[t]he remainder of [§ 3742] ‘functions independently,’” and therefore
remains untouched by Booker. United States v. Milan, 398 F.3d 445, 456 (6th Cir. 2005) (quoting
Booker, 543 U.S. at 265). Under § 3742(f), a Court of Appeals must remand a sentence for further
proceedings when it is “imposed as a result of an incorrect application of the sentencing guidelines.”
§ 3742(f). Furthermore, the Sentencing Guidelines state that “the court shall adjust the sentence
for any period of imprisonment already served on the undischarged term of imprisonment . . . .”
U.S. Sentencing Guidelines Manual § 5G1.3 (2006). Accordingly, Defendant argues that because
the district court did not reduce his advisory Guidelines sentence by the nine months he had already
served, § 3742(f) compels this Court to remand his case for additional proceedings.
         Section 3742(f) only applies when a sentence is applied “as a result of an incorrect
application of the sentencing guidelines.” § 3742(f) (emphasis added). In Williams v. United States,
503 U.S. 193 (1992), the Supreme Court held that “[w]hen a district court has intended to depart
from the guideline range, a sentence is imposed ‘as a result of’ a misapplication of the Guidelines
if the sentence would have been different but for the district court’s error.” Id. at 203. Although
Williams was decided more than a decade prior to Booker, § 3742(f), upon which Williams relied,
“remain[s] valid law.” United States v. Williams, 411 F.3d 675, 678 (6th Cir. 2005). Accordingly,

         1
            Sentencing judges should note that substantive and procedural reasonableness are both exclusively appellate
standards of review. See Gall, 2007 WL 4292116, at *7 (“[T]he appellate court must . . . first ensure that the district
court committed no significant procedural error . . . . [T]he appellate court should then consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.” (emphasis added)) The standard that
district judges should apply at sentencing is described elsewhere in the Gall opinion. See id. (“[A] district court should
begin all sentencing proceedings by correctly calculating the applicable Guidelines range. . . . [A]fter giving both parties
an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the
§3553(a) factors to determine whether they support the sentence requested by a party.” (emphasis added)).
         2
            Defendant also does not expressly allege that his sentence is procedurally unreasonable. That is, he does not
argue that “the district judge fail[ed] to consider the applicable Guidelines range or neglect[ed] to consider the other
factors listed in 18 U.S.C. § 3553(a) . . . .” United States v. Ferguson, 456 F.3d 660, 664 (6th Cir. 2006); see also Gall,
2007 WL 4292116, at *7 (“[The court of appeals] must first ensure that the district court committed no significant
procedural error . . . .”). Nevertheless, because Defendant’s claim that the sentencing judge miscalculated his advisory
Guidelines sentence necessarily raises an inference that “the district judge fail[ed] to consider the applicable Guidelines
range,” the procedural reasonableness of Defendant’s sentence is discussed below. See United States v. Lalonde, — F.3d
—, No. 06-4536, 2007 WL 4321998, at *11 (6th Cir. Dec. 12, 2007) (“On appeal, we must ensure that the district court
properly calculated the advisory Guidelines range as part of its overall consideration of the § 3553(a) factors.”).
No. 07-5129                         United States v. Lane                                     Page 4


we must “endeavor to apply [§ 3742(f)] while taking Booker into account.” Id. Taking Booker into
account, a sentencing judge violates Booker, “if the district judge fails to consider the applicable
Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead
simply selects what the judge deems an appropriate sentence without such required consideration.”
United States v. Ferguson, 456 F.3d 660, 664 (6th Cir. 2006). Therefore, while Williams does not
require this Court to remand the instant sentence unless the district court would have imposed a
different sentence but for an erroneous application of the Guidelines, 503 U.S. at 202, Booker
requires us to remand if the district court “fail[ed] to consider” the correct Guidelines range.
Ferguson, 456 F.3d at 664.
        The district court violated neither Williams nor Booker in imposing an above-Guidelines
sentence on Defendant. As the record indicates, the district court initially determined that
Defendant’s advisory Guidelines range would be 41 to 51 months, the correct range were Defendant
not entitled to credit for the nine months he had already served. After considering each of the
§ 3553(a) factors, however, the district court determined that an upward departure was warranted,
and held that a 68 month sentence “is more appropriate in light of all the facts and circumstances”
of Defendant’s case. (J.A. 35-39.) This determination, however, was not the end of the district
court’s consideration. After the sentencing judge announced his intention to impose a 68 month
sentence, the probation officer reminded the judge that Defendant had already served nine months
on his prior wiretapping conviction, and informed the sentencing judge that the court could give
Defendant credit for this time previously served. In response, the sentencing judge explained that
he thought the presentence report, which recommended a Guidelines sentence of 41 to 51 months
minus time already served, was “problematic.” (J.A. 41.) Furthermore, the sentencing judge said
that he “wanted to be clear” that he had “definitely considered” whether to apply the Guidelines
range as determined by the presentence report, “but [he had] determined that under 18 U.S.C.,
Section 3553, it really won’t meet all the requirements or all the statutory factors as well as the
sentence that I have already articulated.” (J.A. 42.)
       In light of this record, it is clear both that the district court did not impose a different
sentence “as a result of” its earlier determination that the appropriate Guidelines sentence was 41
to 51 months, Williams, 503 U.S. at 203, and that the sentencing judge did not “fail[] to consider the
applicable Guidelines range.” Ferguson, 456 F.3d at 664. Rather, the record indicates that, even
when the probation officer reminded the sentencing judge that the 68 month sentence did not
account for the nine month credit required under the Guidelines, the sentencing judge stated that he
would still impose this sentence in spite of the appropriate Guidelines range. Furthermore, the
sentencing judge indicated that he had read the presentence report, which correctly calculated the
Guidelines range, but made an informed decision to depart from this range after considering the
§ 3553(a) factors. We hold that this sentencing procedure is consistent both with Williams and with
Booker, and therefore affirm the sentence of 68 months.
                                          CONCLUSION
       For the foregoing reasons, Defendant’s sentence of 68 months is AFFIRMED.
