                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0191p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                      No. 08-1697
          v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 DANIEL FRANCIS GRAMS,
                                                 -
                                                N
                   Appeal from the United States District Court
              for the Western District of Michigan at Grand Rapids.
             No. 08-00038-001—Robert Holmes Bell, District Judge.
                                     Argued: April 21, 2009
                               Decided and Filed: May 29, 2009
                                                                                                     *
 Before: CLAY and McKEAGUE, Circuit Judges; HOLSCHUH, Senior District Judge.

                                      _________________

                                            COUNSEL
ARGUED: Richard D. Stroba, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Grand Rapids, Michigan, for Appellant. Matthew G. Borgula, ASSISTANT UNITED
STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: David L.
Kaczor, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan,
for Appellant. Raymond E. Beckering III, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
                                      _________________

                                            OPINION
                                      _________________

        PER CURIAM. Daniel Francis Grams pleaded guilty to robbing a credit union
in Grand Rapids, Michigan, in violation of 18 U.S.C. § 2113(a). The district court



        *
          The Honorable John D. Holschuh, Senior United States District Judge for the Southern District
of Ohio, sitting by designation.


                                                  1
No. 08-1697        United States v. Grams                                          Page 2


sentenced Grams to a term of imprisonment of seventy-two months. On appeal, he
contends that the district court abused its discretion in sentencing him.             We
agree—because the district court failed to explain adequately its reason for imposing the
sentence, we vacate Grams’s sentence and remand for resentencing.

                                              I

       Using the 2008 version of the Guidelines manual, the probation office calculated
a total offense level of nineteen and a criminal history category of IV. This resulted in
an advisory Guidelines range of forty-six to fifty-seven months of imprisonment for
Grams. PSR at 15. As the probation officer noted, however, several of Grams’s
convictions from the 1970s through the 1990s were not included in the criminal history
calculation because they were beyond the time period for consideration. Id. at 16. In
particular, Grams had at least five convictions on record, beginning at age nineteen
years, which were not considered. These convictions included possession of a controlled
substance, burglary, and retail fraud. Id. at 7-9. The probation officer suggested that
upward departures under U.S.S.G. § 4A1.3 (Departures Based on Inadequacy of
Criminal History Category) and § 5K2.21 (Dismissed and Uncharged Conduct) might
be warranted. Id. at 16. The probation officer also suggested that an upward variance
of two levels would be appropriate under 18 U.S.C. § 3553(a). Id. at 16-17. The
probation officer recommended a sentence of seventy-one months, the top of the range
resulting from either a two-level increase in the offense level or an increase to the next
criminal history category. Sent. Rec. at 1.

       The district court notified the parties in writing prior to the sentencing hearing
that it was considering an upward departure “to more accurately reflect the Criminal
History Level of the Defendant.” ROA I at 16. (The district court later referred to this
as its “notice of intent to potentially depart upward under the sentence guideline.”)

       During the sentencing hearing, the district court explained that it had to consider
both the Guidelines range and other sentencing factors to impose a sentence sufficient,
but not greater than necessary, to comply with the purposes of 18 U.S.C. § 3553(a)(2).
Sent. Tr. at 15. The district court did not, however, specifically adopt or reject the
No. 08-1697        United States v. Grams                                              Page 3


Guidelines range recommended in the PSR. It did note the defendant’s extensive
problems with alcohol over the years. The district court then explained,

                 This Court believes that an upward departure is necessary for the
       following reasons. The age of Mr. Grams, while being only 53 years of
       age, would give one reason to believe that an individual who started out
       life, as the government indicates, as a young gentleman being arrested for
       various criminal activities should have long since outgrown that kind of
       behavior and should have acquired a respect for law.
                To say that he was desperate for money and alcohol and that’s
       why he walked into the particular establishment that he walked into at
       West Michigan Credit Union on this particular date is in fact evidence of
       the fact that there is a desperation for money and seemingly no way out
       of a financial mess but that which can be acquired by force and violence
       getting the monies, $3,800 from tellers in a bank. That’s a serious,
       serious offense. That shows an absolute disregard for laws and
       conventionality and respect for other persons, let alone respect of
       institutions, and therefore, it is a serious offense.
                This Court believes that an upward departure of two points with
       a criminal history level of IV is modestly appropriate in this matter to tie
       the criminality together as being, if not financially and alcohol and/or
       drug-related, certainly out of sync with the normal learning process of an
       adult this age. There is a sense in which most persons who find
       themselves in court outgrow illegal behavior. Something in their frame
       tells them that at the age of 35 or 40 or whatever it is, it’s time to become
       a conventional member of society.
               For Mr. Grams this seems to be missing, and I don’t know what
       the component is, whether it’s alcohol, drugs, or whether it’s a mental
       problem. I don’t know what it is. But I do know that the public needs
       protection and there needs to be an adequate deterrence and that there
       needs to be certain medical and correctional treatment provided in this
       matter in order to in some way obviate the likelihood of recidivism and
       the likelihood that this alcohol will be out of control.
              So the Court believes that a sentence that takes into account all
       these factors of 72 months in the custody of the Federal Bureau of
       Prisons will be sufficient to address these characteristics and be a just
       punishment for this offense.
Id. at 16-18.

       Near the end of the hearing, the government pointed out to the district court that
with a two-level upward departure, the resulting range was fifty-seven to seventy-one
No. 08-1697             United States v. Grams                                                        Page 4


months, not seventy-two months. Id. at 19. The district court responded that it was “well
aware of that mathematical issue, and one month is negligible in my opinion.” Id. at 20.

         The district court subsequently issued a written statement of reasons for the
sentence. The district court stated that it adopted the PSR without change. JC at 7.
Rather than check the box for an upward departure under § 4A1.3, see id. at 8, the
district court indicated that it had made an upward variance above the Guidelines range
“[d]ue to the defendant’s absolute disregard of the law and of other persons, and because
of his continual criminal behavior and the likelihood of recidivism, and based upon the
provisions of 18 U.S.S.C. § 3553,” id. at 9.

                                                      II

         On appellate review of a defendant’s sentence, we look to determine whether the
defendant received a reasonable sentence. We “must first 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.” Gall v. United States, — U.S. —, 128 S. Ct. 586,
597 (2007). If procedurally sound, we then review the sentence for substantive
reasonableness under an abuse-of-discretion standard. Id. at 598.

         We begin and end our analysis with the procedural reasonableness of Grams’s
sentence. We first note that the district court did not acknowledge during the hearing
what it considered to be the applicable Guidelines range or whether it adopted all of the
factual findings set forth in the PSR; the district court only did so in its subsequent
written order. This court recently found in United States v. Blackie that a similar
omission by the district court was one of a number of problems that together constituted
plain error.1 548 F.3d 395, 401-02 (6th Cir. 2008). A district court is required to “state


         1
            In this case, however, we are not limited to reviewing any procedural problems only for plain
error. It is true that Grams’s counsel did not object to the district court’s failure to explain adequately its
72-month sentence; instead, when asked after sentencing was complete whether he had any further
No. 08-1697             United States v. Grams                                                        Page 5


in open court the reasons for its imposition of the particular sentence, and, if the
sentence” lies outside the applicable Guidelines range, “the specific reason for the
imposition of a sentence different from that described, which reasons must also be stated
with specificity in the written order of judgment and commitment.” 18 U.S.C.
§ 3553(c)(2). While there seems to have been no disagreement among the parties as to
the correctness of the PSR’s suggested Guidelines range and findings of fact, the district
court should still have stated in open court whether it adopted in part or full the
sentencing range and factual findings suggested by the probation office.                             This is
especially the case when, as here, the district court sentences a defendant outside of the
suggested range and provides further detail only in a statement of reasons sealed from
public disclosure. See Blackie, 548 F.3d at 401-03 (explaining that the district court’s
failure to calculate the applicable Guidelines range in open court as well as its lack of
specificity in its subsequent written order prohibited any meaningful appellate review);
United States v. Molina, 356 F.3d 269, 277 (2d Cir. 2004) (noting that one of the
purposes of § 3553(c) is “to enable the public to learn why [a] defendant received a
particular sentence”). While the Guidelines range that the district court used during the
hearing can be inferred from what it stated on the record as well as what it wrote in its
subsequent statement of reasons, greater clarity in open court would have aided our
appellate review. Cf. United States v. Lanesky, 494 F.3d 558, 560-61 (6th Cir. 2007) (“In
the present case, the district court did not rule on the disputes at sentencing, but adopted
the PSR in its sentencing order. This was not sufficient.”).

         The district court did not clearly identify during the sentencing hearing whether
it was granting an upward departure under the Guidelines or an upward variance under
one or more of the non-Guidelines sentencing factors of § 3553(a). “‘Departure’ is a



objections, defense counsel stated that he had none, “other than what I’ve already raised.” Sent. Tr. at 15.
Normally, a defendant must object to a district court’s procedural errors in imposing sentence immediately
after the court imposes the sentence, or any challenges to the procedural aspects of the sentence on appeal
are reviewed for plain error. United States v. Vonner, 516 F.3d 382, 390 (6th Cir. 2008). However, the
Vonner rule does not apply to this case because the government brought the procedural error at issue to
the district court’s attention after it imposed sentence. As this court has recognized, the purpose of the rule
applied in Vonner is to “provide[] the district court with an opportunity to address the error in the first
instance and allow[] this court to engage in more meaningful review.” United States v. Bostic, 371 F.3d
865, 871 (6th Cir. 2004). Because these considerations were satisfied here, Vonner is inapposite.
No. 08-1697         United States v. Grams                                           Page 6


term of art under the Guidelines and is distinct from ‘variance.’” Blackie, 548 F.3d at
403 (quoting Irizarry v. United States, 128 S. Ct. 2198, 2202 (2008)). A Guidelines
“departure” refers to the imposition of a sentence outside the advisory range or an
assignment of a criminal history category different than the otherwise applicable
category made to effect a sentence outside the range. U.S.S.G. § 1B1.1(E). Importantly,
a departure results from the district court’s application of a particular Guidelines
provision, such as § 4A1.3 or § 5, Part K. United States v. Smith, 474 F.3d 888, 896 n.3
(6th Cir. 2007) (Gibbons, J., concurring). A “variance” refers to the selection of a
sentence outside of the advisory Guidelines range based upon the district court’s
weighing of one or more of the sentencing factors of § 3553(a). Id. While the same facts
and analyses can, at times, be used to justify both a Guidelines departure and a variance,
the concepts are distinct.

        The district court provided written notice to the parties that it was considering
an upward departure under § 4A1.3 (it did not mention § 5K2.21). During the
sentencing hearing, defense counsel spent considerable time arguing against an upward
departure based on his client’s past criminal conduct. The government also addressed
the merits of a § 4A1.3 departure, but went on to argue that a weighing of the § 3553(a)
factors would also warrant a sentence outside of the Guidelines range.

        After listening to counsels’ arguments, the district court imposed what it twice
called an “upward departure.” In doing so, the district court focused on Grams’s long
criminal history and his inability to learn from his past mistakes. Given the probation
officer’s suggestion that an upward departure under § 4A1.3 might be warranted and the
district court’s subsequent written notice to the parties, it is plausible that the district
court intended to depart upward under that provision. Starting from the probation
office’s suggested Guidelines calculations, the range resulting from application of
§ 4A1.3—fifty-seven to seventy-one months—is identical to the one mentioned by the
government at the end of the hearing, to which the district court did not state any
disagreement.
No. 08-1697        United States v. Grams                                          Page 7


       However, rather than strict adherence to the mechanics of § 4A1.3, which would
have resulted in the same base offense level of nineteen but a higher criminal category
of V, the district court stated that it was making an “upward departure of two points with
a criminal history level of IV.” Sent. Tr. at 17. Increasing the suggested Guidelines
range of nineteen by two levels, while keeping the criminal history category at IV, was
more consistent with the PSR’s suggestion for an upward variance of two levels than an
upward departure under § 4A1.3. This also would have resulted in a sentencing range
of fifty-seven to seventy-one months. Based on the record before us, we cannot
determine from what was stated in open court whether the district court intended to grant
a Guidelines departure or a variance. See United States v. Stephens, 549 F.3d 459, 466-
67 (6th Cir. 2008) (explaining that the district court’s use of the term “departure”
throughout the sentencing hearing left the appellate court “in doubt as to whether the
[district] court fully considered its discretion to vary from the sentencing Guidelines
range”).

       This confusion about whether the district court departed or varied might have
been harmless had the district court sentenced Grams within the adjusted range. See
United States v. Obi, 542 F.3d 148, 156 (6th Cir. 2008) (“Where a district court makes
a mistake calculating a guideline 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.”). However, the district court went beyond that range
and sentenced the defendant to seventy-two months. This was in some tension with its
earlier statement that it would impose an “upward departure of two points” (i.e., two
levels to the offense level) because, as explained above, the resulting range was fifty-
seven to seventy-one months, not seventy-two months. When alerted by the government
that the imposed sentence was beyond the revised range, the district court responded that
the one-month difference was, in its opinion, negligible. Yet, as the Supreme Court
explained in Glover v. United States, “any amount of jail time” has constitutional
“significance.” 531 U.S. 198, 203 (2001). Although there may be “some degree of
subjectivity” in selecting a sentence of X months versus one of X-1 or X+1 months,
No. 08-1697        United States v. Grams                                            Page 8


United States v. Jones, 460 F.3d 191, 195 (2d Cir. 2006), a district court’s view that a
particular amount of time in prison is negligible or otherwise insignificant is not a valid
reason for exceeding the range.

       In its subsequent written statement, the district court did not note that it had made
a two-level increase in the offense level, nor did it note that doing so resulted in a
sentencing range of fifty-seven to seventy-one months. Rather, the district court simply
stated that it had imposed a sentence of seventy-two months based on a weighing of
several § 3553(a) factors. The district court did not provide any specific reason for
sentencing Grams above the revised sentencing range beyond its statement during the
hearing that one month was negligible. This was not a sufficient explanation of the
sentence imposed. See United States v. Cousins, 469 F.3d 572, 578 (6th Cir. 2006)
(finding that the district court failed to provide an adequate explanation for the
defendant’s sentence because, among other deficiencies, “the district judge failed to
provide his reasoning for the variance or to explain how the two months that he added
to the maximum Guidelines sentence were related to his stated goal of protecting the
public, which might as easily be invoked to justify a variance of one day or ten years”),
overruled in part on other grounds by Irizarry, 128 S. Ct. 2198.

                                            III

       Given the district court’s statement about the additional month of imprisonment,
along with the district court’s failure to state in open court whether it accepted or
rejected the proposed Guidelines range and our inability to discern how the district court
enhanced that range, we are unable to perform any meaningful appellate review of
Grams’s sentence. Accordingly, we VACATE Grams’s sentence and REMAND for
further proceedings consistent with this opinion.
