                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-11-2006

USA v. King
Precedential or Non-Precedential: Precedential

Docket No. 05-1728




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                                                PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 05-1728



                UNITED STATES OF AMERICA

                                 v.

                    DONALD JAMES KING,
                                 Appellant


          On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                      (D.C. No. 02-cr-00358)
          District Judge: Honorable William H. Yohn, Jr.



                      Argued April 18, 2006

 Before: SLOVITER, AMBRO and MICHEL,* Circuit Judges

                       (Filed: July 11, 2006)


David L. McColgin (Argued)
Defender Association of Philadelphia
Federal Court Division
Philadelphia, PA l9l06

      Attorney for Appellant



      *
        Hon. Paul R. Michel, Chief Judge of the United States
Court of Appeals for the Federal Circuit, sitting by designation.
Lesley B. Fitzgerald
Peter D. Hardy (Argued)
Office of United States Attorney
Philadelphia, PA l9l06


                   OPINION OF THE COURT



SLOVITER, Circuit Judge.

        If the procedural requirements for sentencing defendants
that this court established are so inflexible that we cannot affirm
any sentence when the district court fails to articulate its analysis
in precisely the terms of those requirements, then we must vacate
the sentence imposed in this case no matter how reasonable we
believe it is. Under the circumstances of this case, we will not
vacate the sentence imposed by the District Court. Instead, we
affirm, but write to dispel any erroneous impression that we have
relaxed those requirements. We proceed to explain our
disposition.

                                 I.

        Defendant Donald James King appeals his sentence of
seventy-two months imprisonment that was imposed by the
District Court following his plea of guilty to one count of bank
fraud in violation of 18 U.S.C. § 1344, and one count of use of a
false social security number in violation of 42 U.S.C. §
408(a)(7)(B). King claims that the sentence is unreasonable and
in violation of United States v. Booker, 543 U.S. 220 (2005),
because the District Court did not follow proper procedure for
imposing a sentence in excess of the range recommended by the
Sentencing Guidelines (30–37 months imprisonment).1



       1
          We have jurisdiction under 18 U.S.C. § 3742(a). See
United States v. Cooper, 437 F.3d 324, 328 (3d Cir. 2006) (holding
that an unreasonable sentence is imposed in violation of the law).

                                 2
        The events giving rise to this criminal prosecution took
place during the years 1998 and 1999. Appellant King is a
sixty-seven year old male who engaged in what is commonly
known as “identity theft”— unauthorized use of the personal
information of another person for the purpose of securing loans,
obtaining credit cards, and financing purchases. In carrying out
this crime, King used the social security number and date of
birth of another man with the same name (hereafter “Victim”).
In his plea colloquy, King admitted to employing these means to
engage in a laundry list of transactions, including a mortgage on
his primary residence, several consumer lines of credit and credit
cards resulting in defaults totaling over $14,000, and loans for
the purchase of expensive consumer items, such as a home
entertainment system and luxury cars.2 Some of these


       2
        The transactions in which defendant King used the identity
of the Victim extended back many years before the transactions
listed in the indictment. The Government’s brief lists the
following:

       A mortgage loan for $31,050 from Associates Financial
       Services Co. of Delaware (AFS) taken to secure King’s
       residence at 2647 S. Massey Street in Philadelphia. King
       paid this loan in full.

       Two consumer lines of credit from Beneficial HFC resulting
       in a total loss of $6,461.

       Purchase of a home entertainment system financed by Dial
       National Bank resulting in a defaulted loan in the amount of
       $1,529.

       Defaulting on a revolving line of credit with First USA
       Bank that resulted in a $4,907 loss.

       Purchase of a 1995 Mercedes S320 for $33,995 on which
       King made no payments, resulting in repossession and
       resale with a $13,296 loss to Harris Savings Bank, which
       extended the loan.


                                3
vehicles, which included a Mercedes, a BMW, and a Lexus,
were repossessed and resold, but some were never recovered.
King admitted that his activities caused losses to financial
institutions of $166,000.

        On September 26, 2002, King pled guilty to bank fraud in
violation of 18 U.S.C. § 1344, which carries a maximum
sentence of thirty years imprisonment, and use of a false social
security number in violation of 42 U.S.C. § 408(a), which carries
a statutory maximum of five years. King failed to appear for his
initial sentencing hearing on November 18, 2003. He was
arrested on a bench warrant on March 16, 2004, after attempting
to refinance one of the loans at issue in this prosecution.




      Purchase of a 1995 BMW 325i for $20,700 on which King
      made no payments, resulting in repossession and resale with
      a $10,373 loss to Harris Savings Bank, which extended the
      loan.

      Purchase of a 1996 Chevy Tahoe for $26,000 on which
      King made no payments. Harris Savings Bank lost the full
      amount of the loan as it was unable to recover the vehicle
      for resale.

      Defaulting on a line of credit resulting in a $1,200 loss to
      Northwest Financial.

      Defaulting on a credit card resulting in a loss of $1,670 to
      Providian Financial.

      Purchase of a 1993 Lexus GS-300 for $19,046 on which
      King made no payments. WFS Financial lost the full
      amount of the loan as it was unable to repossess and resell
      the car.

      Purchase of a 1992 Infinity for $12,059 on which King
      made no payments, resulting in repossession and resale with
      a $1,980 loss to WFS Financial, which extended the loan.


                                4
        King was sentenced on February 25, 2005. The Booker
decision was announced approximately six weeks before King’s
sentencing hearing. The District Court started by calculating the
applicable range under the Sentencing Guidelines.3 It adopted
the Presentence Report (“PSR”) and the stipulation of the parties
that the amount of loss for sentencing purposes was $166,000,
which corresponded to a base offense level of six. U.S.S.G. §
2F1.1. A seven-level increase was applied because the loss
exceeded $120,000, and a two-level increase was applied
because the offense involved more than minimal planning. See
U.S.S.G. § 2F1.1(b)(2)(A). Another two-level increase was
applied for obstruction of justice due to King’s absconding
before his sentencing hearing. U.S.S.G. § 3C1.1. King’s
offense level was accordingly seventeen, while his criminal
history category was III, leading to an applicable Guidelines
range of 30–37 months imprisonment.

       The Government moved for a five-level upward departure
in offense level based on severe non-economic harm to the
Victim. U.S.S.G. § 2F1.1 cmt. 11. The District Court declined
to consider this evidence strictly within the framework of the
Guidelines, stating that it would instead take the Government’s
argument and evidence into account when determining the
ultimate sentence under 18 U.S.C. § 3553(a). In response to the
Government’s motion for a five-level upward departure, the
District Court stated:

      I guess my feeling is I really hadn’t thought much about
      this, anything about this issue until this morning when I
      received defendant’s sentencing memorandum. And I’m
      not sure that motions for upward departure are relevant in
      the post Booker era.

             It seems to me at first blush that it’s more likely to
      not consider motions for upward departure, but then
      consider evidence of this type when making a final
      determination as to what the sentence should be after


      3
        The Court applied the 1998 version of the Sentencing
Guidelines.

                                5
       taking the consideration and the sentencing guidelines.

              So I’ll hear what each of you have to say with
       reference to that.

App. at 71.

        In support of its motion, the Government presented the
testimony of the Victim. The Victim testified regarding the
impact King’s criminal activities had had on his life. He
testified that he had first become aware someone was using his
personal information in 1982, when he received a coupon book
for a $3,000 loan that he had not taken out. He also started
receiving numerous bills for credit cards at retail stores such as
Sears and Bradlees, for items that he had never purchased. His
employer (a large utility company) helped him investigate and he
discovered that the defendant had been using his personal
information. The Victim testified in state court regarding these
events and King ultimately pled guilty to forgery in the
Philadelphia Court of Common Pleas in 1983. The following
year, the Victim's driver's license was suspended because King
had been making unauthorized use of a copy of the Victim's
license. King was convicted in Delaware state court for this
offense. PSR 13. The Victim was forced to change the name on
his license as a result of this event. Similar incidents began to
occur again in 1998, when a block the Victim had installed on
his credit expired.

        The Victim estimated that since then he had spent over
500 hours calling loan agencies, banks, and department stores to
protest charges he never made and to clear his credit. He had
been forced to change the name on his driver’s license because it
was repeatedly suspended due to unpaid car loans and parking
tickets on cars falsely registered to him.4 He testified that he had


       4
         King pled guilty to forgery in the Court of Common Pleas
again in 1999 when he was arrested for presenting the Victim’s
driver’s license as his own in order to purchase a car. He was
sentenced to eleven months, fifteen days to twenty-three months
imprisonment, but immediately paroled to home detention and two

                                 6
suffered enduring anxiety and had difficulty engaging in
ordinary commercial transactions because of the damage to his
credit. He also testified that he feared King’s activities would
affect his ability to collect social security benefits.

         The District Court credited the Victim’s testimony. It
concluded that “these facts are such that under the old regimen
would clearly merit an upward departure,” but that instead of
granting the Government’s motion, it would “consider these
facts . . . in determining what my sentence eventually will be
when I consider the factors under [§] 3553.” App. at 77.
Defendant King also spoke at the sentencing hearing. The
relevant part of King’s statement was as follows:

       First, I want to apologize to that Mr. King for all the
       problems that I may or may not have caused him from the
       fact of using his name. But it was never ever intended
       that I have, it was intended that I was going to enhance
       his credit, it was never intended that it was not going to
       pay for anything. If anything, I was going to make sure
       that his credit rating got enhanced far more better - -

             THE COURT: So you’re trying to benefit him?
       Did you ever let him know that you want to help him out
       by enhancing his credit?

              MR. KING: I never seen him. Never seen him.
       Maybe 20 years or so, 10 years or so, second time I’ve
       ever seen him. But like I said, and these times the credit
       was used for him, it was, I had gotten hopefully, so I
       could be, like I said enhance, to make it better, never to
       make it worse. And I always have tried to do something
       to make Mr. King’s credit better, never to make it worse,
       never ever my intent - -

App. at 90 (emphasis added).

       Before announcing its sentence, the District Court


years probation.

                                7
proceeded to make a detailed analysis of King and the offenses.
The Court stated at the beginning: “I must consider the
sentencing guideline range which is 30 to 37 months . . .”. App.
at 93. The Court noted that there was not much “on the positive
side of the ledger for the defendant, . . . [T]hat he has two
children that he would like to take care of, but that is
counterbalanced in my view by the fact that from December of
[2003] when he absconded in this case, he voluntarily gave up
custody of the children and they were placed in foster care” even
though he was not incarcerated until March of 2004. App. at 93.
“So obviously he wasn’t thinking too much about caring for his
children during that time.” App. at 93. The Court noted that
King suffered from prostate cancer, but that it was not acute, and
that King’s bladder cancer appeared to be in remission.

        The Court then proceeded to consider the “very serious
situations” on the negative side. App. at 94. For example,

       the severe harm to the [Victim] which was outlined today
       and is contained in my findings of fact with reference to
       his testimony which has been ongoing for a period of now
       23 years, from beginning in 1982 because of this
       defendant’s conduct. And certainly there is nothing in the
       guideline computation that takes that into consideration.

App. at 94. The Court noted that the defendant had at least 17
convictions from 1966 through 1999, most of which were not
counted in the Guideline computation of King’s criminal history
category because of his age. Thus, the Court remarked that
King’s criminal history was “much more serious than is reflected
in the guideline computation” and that the vast number of
convictions showed “obviously a very high degree of potential
for recidivism and . . . the guideline computation does not reflect
how serious his criminal history has been.” App. at 95. The
Court also noted that King had shown no remorse or
rehabilitation. Significantly the court also stated:

       His explanation today that he did this to enhance the
       credit report of the [Victim] is probably the most absurd
       statement I have heard in 23 years of this business, and
       shows that he just has no comprehension of what he has

                                8
       done and no apprehension of his culpability and no
       remorse for what he has done.

App. at 95.

       The Court stated that the factors referred to required a
sentence substantially higher than that called for by the
Guidelines, which did not reflect the seriousness of the offenses
committed by the defendant, particularly with reference to their
impact on the victim. The Court further stated that the Guideline
range “[did] not provide a just punishment for the defendant in
view of his extensive criminal history and the impact on the
victim.” App. at 96. The Court concluded that a longer sentence
was “necessary to protect the public from further crimes by the
defendant.” App. at 96.

       Thereafter, the District Court sentenced King to seventy-
two months imprisonment for bank fraud, 18 U.S.C. § 1344, and
sixty months imprisonment for use of a false social security
number, 42 U.S.C. § 408(a)(7)(B), to run concurrently. It also
sentenced him to five years of supervised release following his
term of imprisonment, and $87,035 in restitution.

                               II.

       In his appeal, King argues that although Booker rendered
the Guidelines advisory, the district courts are still required to
apply the methodology the court established for this Circuit prior
to Booker for sentences above the Guidelines range. King
contends that there must be some objective standards to guide
the determination of reasonableness, and that at a bare minimum,
the District Court was required to consult the Guidelines and
policy statements in order to arrive at an appropriate departure.
Accordingly, he continues, when departing upwards on a ground
accounted for within the Guidelines, such as
under-representation of criminal history, district courts are
bound to apply U.S.S.G. § 4A1.3 and consider each higher
criminal history category in sequence, as required prior to
Booker. See United States v. Kikumura, 918 F.2d 1084, 1098
(3d Cir. 1990); United States v. Hickman, 991 F.2d 1110, 1114
(3d Cir. 1993). Moreover, King argues, in determining the

                                9
extent of departure the District Court relied upon the statutorily
barred grounds that a lengthier term of imprisonment was
necessary for rehabilitation.

        The Government concedes that it would have been
preferable for the District Court to have applied the “ratcheting
procedure” required by Kikumura and Hickman for enhancing
King’s sentence on the basis of under-representation of criminal
history. See Kikumura, 918 F.2d at 1098; Hickman, 991 F.2d at
1114. The Government agrees that the District Court should
have ruled on its motion for an upward departure on the basis of
harm to the victim. However, the Government emphasizes, King
did not object in the District Court to the procedure used by the
court. Specifically, King never called to the court’s attention its
failure to apply either the rule of Kikumura or Hickman.
Because of that, it argues that the sentence should be affirmed
under plain error. According to the Government, the record
demonstrates that under the pre-Booker regime the District Court
would have granted its motion for a five-level upward departure
in offense level on the basis of harm to the victim and applied a
one-level increase in criminal history category. This would have
resulted in a criminal history category of IV, and an offense level
of twenty-two, which would have led to a sentencing range of
63–78 months. The sentence imposed by the District Court, 72
months imprisonment, lies in the middle of this range.
Accordingly, the Government concludes, King’s substantial
rights were not affected, and the sentence should be affirmed.

                                III.

       We state at the outset of our analysis that we believe the
District Court erred in failing to follow the ratcheting or analogic
procedure that this court set out in Hickman and Kikumura.
King concedes that at sentencing he did not specifically object to
the District Court’s failure to follow those procedures. He
argues that nonetheless he has not waived his objection to the
process both because he did object to any sentence above the
Guideline range and because this court in its decision in United
States v. Freeman, 316 F.3d 386, 391 (3d Cir. 2003), reviewed
the District Court’s failure to follow our mandated procedure
based on Freeman’s objection to the imposition of a sentence

                                10
above the Guideline range.

       We treat the issue before us not as one of waiver but of
the appropriate standard of review and agree with the
Government that plain error review applies. See Fed. R. Crim.
P. 52(b); Booker, 543 U.S. at 268 (holding that ordinary
prudential doctrines such as plain error review apply to
sentencing appeals); United States v. Davis, 407 F.3d 162, 164
(3d Cir. 2005). Where a defendant demonstrates plain error
affecting his substantial rights, we may reverse where the
“fairness, integrity, or public reputation of judicial proceedings”
were affected. United States v. Evans, 155 F.3d 245, 251 (3d
Cir. 1998). An error affects substantial rights when it is
prejudicial and affects the outcome of district court proceedings.
Davis, 407 F.3d at 164.

        It is important to note that the District Court did not
characterize the final sentence it imposed as a departure. It
appears that the court, having taken into account the required
considerations, then left the Guideline scheme behind and chose
a sentence it deemed appropriate for the reasons it set forth. We
would have done little about it in the pre-Guideline era. As we
stated in Kikumura, “[u]nder the old regime, sentencing
discretion was essentially unreviewable.” Kikumura, 918 F.2d
at 1110. That period was followed by the mandatory Guidelines
regime under which we exercised de novo review. In order to
provide some content to our review of the reasonableness of a
sentencing court’s departure (either downward or upward), this
court in Kikumura established the principle requiring the
sentencing court to apply analogic reasoning, i.e., looking to the
Guidelines for policy statements other than the one directly
applicable to find a suitable analogy. See id. at 1110-14.
Thereafter, in our decision in Hickman, 991 F.2d at 1114, we
added the requirement of sequential ratcheting through the
criminal history categories to find a category that adequately
reflects the seriousness of the defendant’s past criminal conduct.
We required the sentencing courts to articulate these steps so that
we would have a basis for our review.

      If we were still under the pre-Booker mandatory
Guideline scheme, the failure of the District Court to have

                                11
expressly followed that approach would likely have required
remand because we would have presumed prejudice. However,
since Hickman and Kikumura, the Supreme Court has declared
the Sentencing Guidelines to be advisory only. Booker, 543
U.S. at 259. Although sentencing courts still have a duty to
consider the applicable Guidelines range under § 3553(a)(4), we
have stated “[t]hat the guidelines are now advisory provides
some play in the joints of the sentencing scheme.” Cooper, 437
F.3d at 326 n.2. Accordingly, we will not presume prejudice but
review for plain error.

After Booker, this Court must evaluate the reasonableness of a
sentence in light of the factors in 18 U.S.C. § 3553(a). Cooper,
437 F.3d at 327–28. The party challenging the sentence has the
burden to demonstrate unreasonableness. See id. at 332.

        “To determine if the court acted reasonably in imposing
the resulting sentence, we must first be satisfied the court
exercised its discretion by considering the relevant factors.” Id.
at 329. Our review of the record convinces us that the District
Court, in fact, did so. The factors a sentencing court must take
into account include:

       (1) the nature and circumstances of the offense and the
       history and characteristics of the defendant, § 3553(a)(1);

       (2) the need for the sentence to reflect the seriousness of
       the crime, promote respect for the law, provide just
       punishment, afford adequate deterrence, protect the
       public, and provide the defendant with needed education
       or vocational training, medical care, and other
       correctional treatment in the most effective manner, §
       3553(a)(2);

       (3) the kinds of sentences available, § 3553(a)(3);

       (4) the applicable Guidelines sentence, § 3553(a)(4);

       (5) the pertinent policy statements of the Sentencing
       Commission, § 3553(a)(5);


                                12
       (6) the need to avoid unwarranted sentencing disparities,
       § 3553(a)(6); and

       (7) the need to provide restitution to victims, §
       3553(a)(7).

        We note that these factors overlap to some degree with
the bases for potential Guidelines departures. For example, in
this case, the Government moved to increase King’s offense
level on the basis of severe, non-economic harm to the victim, an
aspect of the “nature and circumstances of the offense” that
could also be accounted for under § 3553(a)(1). Similarly,
although the District Court could have permissibly applied
U.S.S.G. § 4A1.3 to increase King’s sentence on the ground that
his criminal history category was too low, King’s criminal
history is an aspect of his “history and characteristics.” §
3553(a)(1). And as the District Court observed, because King
had repeatedly victimized the same person, even after his
convictions in both federal and state courts for related offenses,
there was also a need to provide adequate deterrence and to
protect the public, in particular, the Victim in this case. Section
3553(a)(2) requires consideration of the need for the sentence
imposed in order to “reflect the seriousness of the offense,”
“afford adequate deterrence,” “protect the public,” and “provide
just punishment.” 18 U.S.C. § 3553(a)(2)(A)–(C).

         Furthermore, as required by § 3553(a)(4), the District
Court calculated a “correct guidelines range applicable to the
defendant’s particular circumstances,” adopting the
recommendations of the PSR, which calculated King’s offense
level as seventeen, applying several adjustments based on
obstruction of justice and loss amount. Cooper, 437 F.3d at 330.
We decline to hold that it was necessarily error to increase
King’s sentence by applying § 3553(a) instead of potentially
applicable Guidelines departures. We are satisfied that the
District Court considered the relevant factors in this case, and
that it reasonably applied those factors to the circumstances of
this case. See Cooper, 437 F.3d at 330.

       That the resulting sentence was nearly double the top of
the Guidelines range does not make it per se unreasonable. Id. at

                                13
331–32. Such a significant departure must be adequately
supported by the record. See, e.g., United States v. Moreland,
437 F.3d 424, 434 (4th Cir. 2006); United States v. Jordan, 435
F.3d 693, 696-97 (7th Cir. 2006) (“The farther a sentence varies
from the advisory guidelines range, the more compelling the
judge’s reasons must be.”); see also Kikumura, 918 F.2d at 1110
(holding prior to Booker that the degree of departure must be
reasonable). The District Court provided an adequate
explanation of the sentence on the record. Cooper, 437 F.3d at
329–30. It gave extensive attention to the circumstances of
King’s life and offense and the harm done to King’s Victim.
The Victim’s testimony provided a portrait of King as a career
criminal who was not deterred by prosecution in state or federal
courts from continuing to use the Victim’s personal information
for financial gain, and who failed to appear for sentencing after
he pled guilty in federal court until he was apprehended once
again trying to use the Victim’s information. The District Court
also observed King’s lack of remorse and comprehension of the
harm done by his actions.

        A lengthy prison sentence was clearly warranted in order
to prevent and deter King from reoffending, as well as to provide
adequate punishment for his conduct. The seventy-two month
sentence is still well below the statutory maxima of thirty-five
years (thirty years for bank fraud, five years for false use of a
social security number). The trial court is in “the best position to
determine the appropriate sentence in light of the particular
circumstances of the case.” Id. at 330; Kikumura, 918 F.2d at
1110 (holding prior to Booker that district courts were entitled to
a substantial amount of discretion in determining the extent of a
departure).

        Sentencing King just six weeks after Booker, the District
Court was operating without guidance from this court which has
not yet fleshed out how closely it will hold district courts to
pre-Booker practice with respect to calculations of the
Guidelines range. We have, however, cautioned against per se
rules that “effectively re-institute mandatory adherence to the
Guidelines.” Cooper, 437 F.3d at 331 (citation omitted); see
also United States v. Webb, 403 F.3d 373, 385 n.9 (6th Cir.
2005); United States v. Mykytiuk, 415 F.3d 606, 607 (7th Cir.

                                14
2005); United States v. Talley, 431 F.3d 784, 787 (11th Cir.
2005). Booker itself gives little direction as to how closely
sentencing courts are to adhere to the formerly mandatory
Guidelines. See Booker, 543 U.S. at 259–60 (holding only that
judges are required to “consider” the applicable sentencing
range, pertinent policy statements, the need to avoid unwarranted
sentencing disparities, and other factors from § 3553(a)). In this
case, we find that King’s substantial rights were not affected by
any error that did occur because the record demonstrates that,
under the old regime, the District Court would have granted the
Government’s motion to depart under U.S.S.G. § 2F1.1 cmt. 11,
and increased King’s offense level by at least one level on its
own motion under § 4A1.3.

        In considering the Government’s motion to enhance
King’s offense level based on severe harm to the victim, the
District Court stated: “[I]t seems to me that these facts are such
that under the old regimen would clearly merit an upward
departure, since they are facts that are not considered by the
guidelines.” App. at 77. The Court stated: “I will enhance his
sentence because of the extensive nature of his criminal history.
What would have been under the old regimen an upper departure
because it fails to adequately represent the seriousness of his
prior criminal history and the possibility that he will commit
further crimes.” App. at 78.

        Because the District Court did in fact touch all the bases
required, we will affirm the sentence imposed.5 We see nothing
to be gained by remanding so that the District Court can
articulate that which is already clear. Nevertheless, we
emphasize that the sentencing courts in this Circuit should
continue to follow the requirement to “consider” the Guidelines
by calculating a Guidelines sentence as they would have before
Booker, including formally ruling on the motions of both parties


       5
         Our result is consistent with that recently reached by this
court in United States v. Vampire Nation (Banks), No. 05-1715,
___ F.3d ___ (3d Cir. June 20, 2006) (differentiating between
traditional departures under the Guidelines and variances from the
Guidelines based on Booker).

                                15
and stating on the record whether they are granting a departure
and how that departure affects the Guidelines calculation, and
taking into account this Circuit’s pre-Booker caselaw, which
continues to have advisory force. See, e.g., 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.”).
As noted earlier, the district courts must continue to follow the
procedures mandated in Kikumura and Hickman before
determining the appropriate sentence to be imposed.

       Finally, they should observe the requirement to state
adequate reasons for a sentence on the record so that this court
can engage in meaningful appellate review.6
                               IV.

      For the foregoing reasons, the sentence imposed on
Donald King by the District Court is affirmed.




       6
         We reject King’s argument that the District Court relied
upon the statutorily barred ground that a lengthier term of
imprisonment was necessary for rehabilitation. See 18 U.S.C. §
3582(a) (“imprisonment is not an appropriate means of promoting
correction and rehabilitation”). The District Court found that a
shorter term of imprisonment would not provide just punishment
and that a longer sentence was necessary to deter the defendant
from committing further crimes. Section 3553(a)(2)(D) requires
the District Court in handing down a sentence to consider the need
“to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner.”
