                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0277p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                   X
                              Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                    -
                                                    -
                                                    -
                                                        No. 05-1229
         v.
                                                    ,
                                                     >
 DOUGLAS ALAN BARTON,                               -
                          Defendant-Appellant. -
                                                   N
                     Appeal from the United States District Court
                for the Western District of Michigan at Grand Rapids.
                  No. 04-00050—Richard A. Enslen, District Judge.
                                            Argued: June 15, 2006
                                    Decided and Filed: August 3, 2006
            Before: KENNEDY and COLE, Circuit Judges; VARLAN, District Judge.*
                                             _________________
                                                  COUNSEL
ARGUED: Richard D. Stroba, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids,
Michigan, for Appellant. Hagen W. Frank, ASSISTANT UNITED STATES ATTORNEY, Grand
Rapids, Michigan, for Appellee. ON BRIEF: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S
OFFICE, Grand Rapids, Michigan, for Appellant. Daniel Y. Mekaru, ASSISTANT UNITED
STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
         KENNEDY, J., delivered the opinion of the court, in which VARLAN, D.J., joined. COLE,
J. (p. 11), delivered a separate concurring opinion.
                                             _________________
                                                 OPINION
                                             _________________
        KENNEDY, Circuit Judge. Douglas Alan Barton (“defendant”) appeals his post-Booker
sentence. In his appeal, he alleges that Booker was applied in a manner inconsistent with his due
process rights. He also argues that the district court imposed a sentence that was not reasonable.
For the following reasons, we affirm defendant’s sentence.



        *
         The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of Tennessee, sitting
by designation.


                                                         1
No. 05-1229               United States v. Barton                                                              Page 2


                                                BACKGROUND
       Defendant pled guilty on August 11, 2004, to three counts of bank robbery, in violation of
18 U.S.C. § 2113(a). A Presentence Investigation Report prepared for defendant’s sentencing using
the 2004 edition of the U.S. SENTENCING GUIDELINES MANUAL (“Guidelines”) calculated
defendant’s combined adjusted offense level as 24 and assigned him a criminal history category of
VI. These scores resulted in a recommended sentencing range of between 100 and 125 months’
imprisonment. The sentence was imposed on February 8, 2005, after the United      States Supreme
Court released its opinion in United States v. Booker, 543 U.S. 220 (2005).1
        Prior to his sentencing hearing, the government filed a motion requesting an upward
departure from the recommended Guidelines range. The government argued that, in 1999, defendant
was convicted of six bank robberies charged in a single indictment, and thus defendant’s criminal
history score understated the extent of his previous criminal history. It asserted that defendant was
a de facto career offender and should be sentenced as a career offender would be under the
Guidelines. Id. The government pointed out that the Guidelines allowed for upward departures, and
Booker did not significantly change the analysis governing whether an upward departure was
appropriate.
        Defendant filed two objections to the presentence report. The district court characterized one
objection as “a general objection to the entirety of the [presentence] report and the whole project of
sentencing a person using a guideline[s] score.” Defendant also specifically objected to the
imposition of a “two level enhancement for the making of a threat of death in connection with some
of the bank robberies.”
        The district court overruled both of defendant’s objections. The district court relied on pre-
Booker case law in determining that the phrase “I have a gun” is an implicit threat of death. It then
found, by a preponderance of the evidence, that defendant had used an implicit threat of death in
connection with the bank robberies, and the two-level enhancement was appropriate. It also rejected
defendant’s general objection to the use of the Guidelines, holding that to consult the Guidelines,
it had to accurately calculate the Guidelines range including enhancements, just as it would have
done prior to Booker, but that it would then treat the resulting range as an advisory range to be
considered in addition to the factors under 18 U.S.C. § 3553(a).
        The district court also rejected the government’s motion for an upward departure under the
Guidelines. It recognized that the Guidelines give judges flexibility to treat certain defendants as
de facto career criminals but asserted that “the technical aspects of the guidelines, as part of the
lawyer’s art, often times serve[] . . . important purpose[s] by making valid legal distinctions which
should have or ought to have some effect. In this case, the distinctions count for more than naught.”
The district court noted that the Guidelines do attempt to account for the fact that, in general, when
a defendant goes on a spree, that defendant is less dangerous than a defendant that commits three
separate crimes. The six bank robberies included more than one in the same day and were closely
related in time. The court ruled that defendant’s criminal history was accurately reflected by the
Guidelines criminal history score, and an upward departure on that ground was inappropriate in this
case.
       At sentencing, the government argued for a sentence above the calculated Guidelines range.
Counsel for defendant argued that a sentence within the advisory Guidelines would be appropriate
and asked the court to consider defendant’s mental health and substance abuse problems in


         1
          Defendant’s sentencing was delayed several times in anticipation of the United States Supreme Court ruling
in Booker. In addition, defendant’s sentencing was delayed at one point because his counsel did not appear at a hearing.
No. 05-1229           United States v. Barton                                                 Page 3


determining an appropriate sentence. Defendant also requested being assigned to a facility where
he could get appropriate psychiatric counseling.
         When sentencing the defendant, the court listed the factors that it was required to consult
under 18 U.S.C. § 3553(a). The district court noted that defendant had robbed nine banks but that
his history suggested “defendant has had profound difficulties adjusting to societal legal
expectations caused in no small measure by his mental health problems.” It also described the level
of threats used in the bank robberies as mild compared to other armed robbery crimes but expressed
that it did not believe “that anybody[’s statement to] a bank teller...I have a gun I want money can
be considered a mild threat.” By way of comparison, the court considered a previous bank robbery
where, although the perpetrator had not intended to harm the teller, the robber had used a gun,
mistakenly fired it, killing the teller, and subsequently received a life sentence. It noted that
defendant’s crimes were committed as a spree but that, in the court’s estimate, defendant was a
dangerous person. The district court also focused on the need to rehabilitate defendant and get him
the psychiatric and substance abuse treatment that he needed, but it also indicated that selecting an
appropriate amount of time to achieve all of those aims was difficult. The district court sentenced
defendant to 168 months, three years of supervised release, a $300 special assessment, and
restitution to the financial institutions. Additionally, in light of defendant’s history of severe
depression and substance abuse, the court expressed its intention to strongly recommend that
defendant be incarcerated at Butner Federal Correctional Institution, per defendant’s request, or at
another medical prison facility that could help him with both of those issues.
        On appeal, defendant continues to press his objections to the use of enhancements in
determining the advisory Guidelines range. For the first time on appeal, defendant also argues that
the Due Process Clause prohibits “retroactive application of the detrimental aspects of the Booker
decision,” because the judicial construction in Booker was “unexpected” and “indefensible by
reference to law which had been expressed prior to the conduct in issue.” Rogers v. Tennessee, 532
U.S. 451, 457 (2001). Defendant also argues that “[t]he Due Process clause [of the Fifth
Amendment] requires that facts which increase the advisory Guideline[s] range be found beyond a
reasonable doubt.” Finally, defendant argues that his sentence is not reasonable because it is greater
than necessary to comply with the sentencing factors under 18 U.S.C. § 3553(a). Defendant asserts
that the district court held that he was not a de facto career offender under the Guidelines but then
sentenced him as if he was one. He argues that this result also makes his sentence unreasonable.
                                            ANALYSIS
A.     Retroactive application of Booker in a fashion that negatively impacts defendant does not
       violate the Due Process Clause of the United States Constitution.
         Defendant pled guilty after the Supreme Court decided Blakely v. Washington, 542 U.S. 296
(2004). He was sentenced after the Supreme Court decided Booker. For the first time on appeal,
defendant argues that because he pled guilty after Blakely and prior to Booker, the Due Process
Clause prohibits “retroactive application of the detrimental aspects of the Booker decision,”
asserting that the judicial construction in Booker was “unexpected” and “indefensible by reference
to the law which had been expressed prior to the conduct in issue.” Rogers, 532 U.S. at 457. This
court reviews constitutional challenges de novo, United States v. Copeland, 321 F.3d 582, 601 (6th
Cir. 2003), however, because this argument was not raised below, Sixth Circuit precedent requires
application of the plain error standard. See id. See also United States v. Hayes, 218 F.3d 615, 619-
20, 622 (6th Cir. 2000). Since we conclude that no due process violation occurred, and, thus, there
was no error, any ambiguity in the appropriate standard of review need not be resolved.
       Defendant relies primarily on Rogers to support his arguments. In Rogers, the Supreme
Court addressed whether the Ex Post Facto Clause of the United States Constitution as applied to
No. 05-1229               United States v. Barton                                                                      Page 4


judicial decisions through the Due Process Clause prohibited the retroactive application of the
Tennessee Supreme Court’s decision to abolish the common law “year and a day rule” in
prosecutions for homicide. See Rogers,    532 U.S. at 453, 456-57 (citing and discussing Bouie v. City
of Columbia, 378 U.S. 347 (1964)2). The Rogers Court held that “a judicial alteration of a common
law doctrine of criminal law violates the principle of fair warning, and hence must not be given
retroactive effect, only where it is ‘unexpected and indefensible by reference to the law which 3had
been expressed prior to the conduct in issue.’” Id. at 462 (quoting Bouie, 378 U.S. at 354). It
determined that the Tennessee Supreme Court’s change to the law was not unexpected because the
year and a day rule was “widely viewed as an outdated relic of the common law” and that the
defendant in that case did not provide any good reason to retain the rule. Id. at 462-63. The Court
discussed the common law and legislative abolition of the rule in other states and described the
paucity of case law using the rule in Tennessee as further reasons that retroactive abolition of the
rule was neither unexpected nor indefensible. Id. at 463-67.
        Defendant’s arguments that the Supreme Court’s substitution of discretionary Guidelines for
mandatory Guidelines was both “unexpected and indefensible by reference to the law which had
been expressed prior to the conduct in issue” cannot, in his case, be correct. Id. at 470. While it is
true that precisely what effect Blakely would have on the Guidelines was not known, Blakely was
decided before defendant committed the robberies here. Thus, it would not have been a leap of logic
to expect the Supreme Court to apply Blakely to the Guidelines in some manner. Furthermore, while

         2
          In Bouie v. City of Columbia, the United States Supreme Court addressed the question of whether the Supreme
Court of South Carolina’s post-arrest construction of its criminal trespass statute violated the Due Process Clause of the
United States Constitution. 378 U.S. 347 (1964). The United States Supreme Court found that:
         There can be no doubt that a deprivation of the right of fair warning can result not only from vague
         statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and
         precise statutory language. As the Court recognized in Pierce v. United States, 314 U.S. 306, 311, 62
         S.Ct. 237, 239, “judicial enlargement of a criminal act by interpretation is at war with a fundamental
         concept of the common law that crimes must be defined with appropriate definiteness.” Even where
         vague statutes are concerned, it has been pointed out that the vice in such an enactment cannot “be
         cured in a given case by a construction in that very case placing valid limits on the statute,” for “the
         objection of vagueness is two-fold: inadequate guidance to the individual whose conduct is regulated,
         and inadequate guidance to the triers of fact. The former objection could not be cured retrospectively
         by a ruling either of the trial court or the appellate court, though it might be cured for the future by an
         authoritative judicial gloss....” If this view is valid in the case of a judicial construction which adds
         a ‘clarifying gloss’ to a vague statute, making it narrower or more definite than its language indicates,
         it must be a fortiori so where the construction unexpectedly broadens a statute which on its face had
         been definite and precise. Indeed, an unforeseeable judicial enlargement of a criminal statute, applied
         retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution
         forbids.
Bouie, 378 U.S. at 352-53 (citations omitted). The Supreme Court, using the above analysis, determined that:
         An ex post facto law has been defined by this Court as one “that makes an action done before the
         passing of the law, and which was innocent when done, criminal; and punishes such action,” or “that
         aggravates a crime, or makes it greater than it was, when committed.” If a state legislature is barred
         by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is
         barred by the Due Process Clause from achieving precisely the same result by judicial construction.
Id. at 353-54. As a result, the Court held that the defendants’ convictions for criminal trespass had to be reversed
because they violated the Due Process Clause. Id. at 362-63.
         3
          The Rogers Court explained its rationale for the use of a more stringent standard in the due process context
by noting that: “[s]trict application of ex post facto principles in that context would unduly impair the incremental and
reasoned development of precedent that is the foundation of the common law system. The common law, in short,
presupposes a measure of evolution that is incompatible with stringent application of ex post facto principles.” Id. at
461.
No. 05-1229              United States v. Barton                                                             Page 5


many differed over the mechanism by which the Supreme Court would remedy any problem with
the Guidelines, defendant offers no argument as to why the remedy selected by the Supreme Court
was unexpected.
         Defendant also argues that the remedial holding in Booker was “indefensible by reference
to the law which had been expressed prior to the conduct at issue” because the Supreme Court failed
to cite cases in support of its remedy. We disagree. Demonstrating a failure by a court to cite case
law in support of its crafted remedy is a far cry from showing that its remedy was indefensible under
prior expressed precedent.
         The instant case differs from both Bouie and Rogers in important respects. In both of those
cases, the Supreme Court was concerned with the retroactive application of a binding judicial
interpretation. In other words, the interpretation of the statute and the common law rule compelled
a result that had a negative retroactive effect on the defendants advancing the due process claims.
In contrast, the Supreme Court decision in Booker made the Guidelines advisory. Because the
Guidelines are advisory post-Booker, they can be described as providing recommended sentences
for district court judges. It is difficult to see how those recommendations can raise the same
constitutional infirmities as can the binding judicial interpretations at issue in Bouie and Rogers.
While it is true that, under Booker, district courts must consult the Guidelines, after they are
consulted, the district court may impose a sentence outside the Guidelines range if the other relevant
factors under 18 U.S.C. § 3553(a) direct the selection of a different sentence. See Booker, 543 U.S.
at 264-65. Indeed, post-Booker, while the district court is required to consult the Guidelines, the
critical inquiry in determining an appropriate sentence is not the Guidelines range, but a sentence
that is “sufficient, but not greater than necessary to comply with the purposes set forth in [Title 18
U.S.C. § 3553(a)]. Id. at 268. See United States v. Webb, 403 F.3d 373, 383-85 (6th Cir. 2004).
See also United States v. Richardson, 437 F.3d 550, 553-55 (6th Cir. 2006). Put another way, if, in
calculating the Guidelines sentence, the district court enhances a defendant’s sentence, that
enhancement provides no guarantee that that calculated Guidelines range will have a critical effect
on defendant’s sentence in view of the fact that the Guidelines are now advisory. Absent such a
guarantee, it is difficult to see how the protection against ex post facto laws that a defendant’s right
to due process provides could be violated. Even before Booker, the district court had some freedom
to depart from Guidelines ranges. Finally, the freedom to depart upward is not unfettered post-
Booker in view of this court’s reasonableness review.
        Additional support for our conclusion that defendant’s due process rights were not violated
comes from the reason why providing notice is important. In Rogers, the Supeme Court noted that
“Bouie was rooted firmly in well established notions of due process. Its rationale rested on core due
process concepts of notice, foreseeability, and, in particular, the right to fair warning as those
concepts bear on the constitutionality of attaching criminal penalties to what previously had been
innocent conduct.” Rogers, 532 U.S. at 459. Thus, when addressing ex post facto-type due process
concerns, questions of notice, foreseeability, and fair warning are paramount. Id. Courts are
concerned about notice, forseeability, and fair warning because it is expected that both statutes and
judicial interpretations of those statutes affect the behavior of the public. Thus, the public must be
able to adequately inform itself of a law or a judicial interpretation before acting. Cf. United States
v. Harriss, 347 U.S. 612, 617 (1954) (“The underlying principle is that no man shall be held
criminally responsible for conduct which he could not reasonably understand to be proscribed.”).
If, however, the change 4in question would not have had an effect on anyone’s behavior, notice
concerns are minimized.

         4
         Our prior precedent and the Guidelines themselves cautioned that earlier versions of the Guidelines should
be used when an ex post facto problem is present. See United States v. Kussmaul, 987 F.2d 345, 351-52 (6th Cir. 1993);
U.S. SENTENCING GUIDELINES MANUAL § 1B1.11(b)(1). Such a concern is understandable. In the past, when the
Guidelines were mandatory, the Guidelines operated in a manner similar to statutes. Thus, ex post facto concerns, as
No. 05-1229                 United States v. Barton                                                                Page 6


       Defendant does not argue that he was ignorant of the law under which he was convicted, nor
does he argue that the law is vague or otherwise      failed to put him on notice as to either the
prohibited conduct or the possible penalty5 he faced. In this case, defendant was fully aware that
robbing a bank was illegal and that doing so would expose him to a significant penalty that might
increase because of his prior federal convictions for committing the same crime.
        Prior to Booker and under the mandatory Guidelines regime, defendant would likely have
faced between 100 and 125 months’ imprisonment for his crime. After Booker, under the advisory
Guidelines, defendant may be sentenced up to the statutory maximum if such a sentence would
comply with 18 U.S.C. § 3553(a). Further, prior to Booker, upward departures could be granted for
a multitude of conduct, so defendant’s possible sentence exposure did not increase.
        Defendant was sentenced to 168 months’ imprisonment. For this court to find that notice
is a significant concern in this situation, it would have to find that a defendant would likely have
changed his or her conduct because of a possible increase in jail time. While6it is true that, at the
margins, notice considerations might limit the increase in length of sentences, it is difficult to see
why a person who was intent on committing a bank robbery and who was presumably prepared to
spend a lengthy period of time in prison if he or she was caught would be dissuaded by the prospect
of a somewhat longer prison term. Notice concerns are, therefore, limited in this case.
      While all the other circuits agree that the application of advisory Guidelines to defendants
who committed crimes prior to Booker does not violate the Due Process Clause in the manner




opposed to the ex post facto-type due process concerns at issue here, were present because a defendant would be
guaranteed to receive a higher sentence under the mandatory Guidelines if changes in the Guidelines calculations
increased that defendant’s offense level or criminal history score.
          Ex post facto concerns require a slightly different analysis than do similar due process concerns, first because
ex post facto legislation is explicitly banned in the Constitution, but also because when the Supreme Court has discussed
the motivation behind the ban on ex post facto legislation, it has identified a separate concern than notice as motivating
its jurisprudence, that is, the need to restrict arbitrary or vindictive legislative acts. See Weaver v. Graham, 450 U.S.
24, 29 (1981) (“The ban [on ex post facto legislation] also restricts governmental power by restraining arbitrary and
potentially vindictive legislation.”(citations omitted)). These twin concerns of notice and the desire to restrict arbitrary
and vindictive acts by a legislature cause courts to apply the Ex Post Facto Clause in a more stringent fashion than they
do the ex post facto aspect of the Due Process Clause.
          When the Guidelines were mandatory, defendants faced the very real prospect of enhanced sentences caused
by changes in the Guidelines or changes in the interpretation of Guidelines that occurred after they had committed their
crimes. Now that the Guidelines are advisory, the Guidelines calculation provides no such guarantee of an increased
sentence, which means that the Guidelines are no longer akin to statutes in their authoritativeness. As such, the Ex Post
Facto Clause itself is not implicated. Thus, the dual concerns of notice and the need to prevent arbitrary or vindictive
legislative acts present in our earlier cases are no longer present in the same way they were when we analyzed changes
to the Guidelines under the Ex Post Facto Clause. Our concern, under Supreme Court due process jurisprudence, and
in contrast with its ex post facto jurisprudence, is mainly limited to insuring that defendants have sufficient notice of
illegal activity. Cf. Harriss, 347 U.S. at 617. As such, because due process analysis requires a different focus than does
ex post facto analysis and because notice concerns are, in this case, minimized, see infra, defendant’s due process
arguments fail.
         5
             The statutory maximum for defendant’s crimes is 20 years in prison, a fine, or both. 18 U.S.C. § 2113(a).
         6
          For instance, if a prior version of the Guidelines in effect at the time the crime is committed suggests a
sentence of a fine and a later version recommends a period of imprisonment, such a difference might implicate the Due
Process Clause.
No. 05-1229               United States v. Barton                                                               Page 7


suggested by defendant, we are unable to simply adopt their analyses.7 Those courts focus on one
of two arguments as to why retroactive application of Booker does not violate the Due Process
Clause. Some circuits hold that because defendants were on notice as to the statutory maximums,
that notice is sufficient to comport with the Due Process Clause. United States v. Pennavaria, 445
F.3d 720, 723-24 (3d Cir. 2006); United States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006);
United States v. Alston-Graves, 435 F.3d 331, 343 (D.C. Cir. 2006); United States v. Vaughn, 430
F.3d 518, 524-25 (2d Cir. 2005); United States v. Dupas, 419 F.3d 916, 921 (9th Cir. 2005); United
States v. Jamison, 416 F.3d 538, 539 (7th Cir. 2005). See also United States v. Austin, 432 F.3d 598,
599-600 (5th Cir. 2005). Cf. United States v. Lata, 415 F.3d 107, 110-12 (1st Cir.) (holding that
statutory maximums provided enough guidance such that a defendant would not be surprised as is
required by Rogers); United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir. 2005) (holding that
statutory maximums provided sufficient guidance such that a defendant cannot claim that the
application of Booker would violate the Supreme Court’s test in Rogers). Were we to hold that
statutory maximums are sufficient to cure any notice issue under the Due Process Clause, the same
logic would have applied with equal force to changes in the Guidelines prior to Booker. Yet, this
court’s precedent held to the contrary, and the Guidelines themselves cautioned about violations of
the Ex Post Facto Clause. See United States v. Kussmaul, 987 F.2d at 351-52; U.S. SENTENCING
GUIDELINES MANUAL § 1B1.11(b)(1). See also supra note 4.
         Other circuits have also held that the Supreme Court’s direction that Booker should apply
to all cases on review means that no due process issue exists, as the Supreme Court would not have
ordered the lower courts to engage in unconstitutional conduct. Pennavaria, 445 F.3d at 723-24;
United States v. Wade, 435 F.3d 829, 832 (8th Cir. 2006); Austin, 432 F.3d at 599-600; Vaughn, 430
F.3d at 524-25; United States v. Rines, 419 F.3d 1104, 1106 (10th Cir. 2005); Jamison, 416 F.3d at
539; Duncan, 400 F.3d at 1304. This argument is also fraught with difficulties and uncertainties.
Due process concerns of the type raised here were not on appeal in Booker. Thus, the Supreme
Court may not have considered the due process implications of its holding. If the Supreme Court
did not consider ex post facto-type due process violations resulting from its decision in its directive
to apply Booker to all cases on review, its decision can not be read as necessarily foreclosing
arguments such as those advanced by defendant here.
        The First Circuit’s holding in Lata and the Eleventh Circuit’s holding in Duncan are worthy
of further discussion. In the former case, the First Circuit determined that:
         [S]omeone in Lata’s position could not reasonably be surprised by the sentence he
         eventually received. Whether or not exactly the same sentence would necessarily
         have been imposed by departures under the guidelines is necessarily uncertain. But
         the sentence imposed is not wildly different than a sentence that might well have


         7
            Certain of our post-Booker cases have identified ex post facto or due process concerns as being ever-present,
but those cases simply restate the prior pre-Booker rule and do not address the question of how Booker affects the ex
post facto and due process analyses under Rogers and Bouie in any detail. United States v. Harmon, 409 F.3d 701, 706
(6th Cir. 2005) (“When use of that edition would violate the ex post facto clause of the Constitution, however ( i.e.,
when it would produce a higher sentence range than the version in effect when the crime was committed), the earlier
edition is to be used.” (citing U.S. SENTENCING GUIDELINES MANUAL § 1B1.11(b))); United States v. Davis, 397 F.3d
340, 348-50 (6th Cir. 2005) (finding an ex post facto problem and finding that said problem meets the plain error test).
Both of these cases addressed sentences that the district court gave under the mandatory Guidelines prior to the Supreme
Court’s decision in Booker. As such, though this court’s decisions in both cases were released after Booker, this court
was reviewing the district courts’ errors in the posture of a court reviewing sentences given under the mandatory
Guidelines. In addition, the limited analysis of the question and the citation to pre-Booker precedent in both of these
cases indicate that the ex post facto-type due process arguments raised by both defendants were the same type of errors
raised by other defendants when the Guidelines were mandatory. In short, they were not the same type of due process
argument raised by defendant here today. As such, because these cases addressed different types of due process concerns
than the ones defendant raises here, their precedent is not binding on this issue.
No. 05-1229           United States v. Barton                                                    Page 8


        been imposed under the guidelines for someone with Lata's criminal record and
        offense-related conduct.
Lata, 415 F.3d at 112. See also Duncan, 400 F.3d at 1307. In so holding, the First and the Eleventh
Circuits melded the argument on statutory maximums raised by other circuits with the tests for due
process violations laid out by the Supreme Court in Rogers. Such an approach is more convincing
but could still be applied to the Guidelines prior to Booker, thus raising the conflict with our
precedent.
        The First Circuit also discussed the possibility that “a sentence...imposed for a pre-Booker
crime that is higher than any that might realistically have been imagined at the time of the crime or
based on factors previously discouraged, prohibited, or not recognized under the guidelines” might
raise due process concerns. See Lata, 415 F.3d at 112. The court also noted that reasonableness
review may well catch any such sentences that are truly out of the norm. Id. Though the problem
that the First Circuit identifies is, as it concluded, unlikely to occur, its caveat is a reasonable one.
Thus, while we join every other circuit in holding that Booker does not violate ex post facto-type
due process rights of defendants, we come to that conclusion for the reasons stated herein.
Defendant’s ex post facto and due process arguments lack merit.
B.      The district court properly used the preponderance of the evidence standard for calculating
        enhancements using the advisory Guidelines.
        Defendant argues that the district court should have only applied enhancements if the
government proved those enhancements beyond a reasonable doubt, rather than merely by a
preponderance of the evidence. Prior to Booker, district courts used the preponderance of the
evidence standard when applying enhancements. United States v. Dupree, 323 F.3d 480, 491 (6th
Cir. 2003) (“The burden is on the government to prove, by a preponderance of the evidence, that a
particular sentencing enhancement applies.”). After Booker, this court has held that:
        Booker did not eliminate judicial fact-finding. Instead, the remedial majority gave
        district courts the option, after calculating the Guideline range, to sentence a
        defendant outside the resulting Guideline range. Booker, 125 S.Ct. at 764, 769; U.S.
        v. Williams, 411 F.3d 675, 678 (6th Cir. 2005). District courts, in cases such as
        these, must, therefore, calculate the Guideline range as they would have done prior
        to Booker, but then sentence defendants by taking into account all of the relevant
        factors of 18 U.S.C. § 3553, as well as the Guidelines range.
United States v. Stone, 432 F.3d 651, 654-55 (6th Cir. 2005). See also United States v. Yagar, 404
F.3d 967, 972 (6th Cir. 2005) (noting that “a finding under the Guidelines must be based on reliable
information and a preponderance of the evidence”).
         The Supreme Court held that the remedy it chose in making the Guidelines advisory is all
that is constitutionally necessary to avoid the Fifth Amendment due process problem that defendant
alleges exists. See Booker, 543 U.S. at 258-65. If the Supreme Court had felt it necessary to remedy
the constitutional error in the Guidelines in the manner defendant suggests, it clearly could have
done so. See id. at 272-303 (Stevens, J., dissenting in part); id. at 303-313 (Scalia, J., dissenting in
part); id. at 313-326 (Thomas, J., dissenting in part). It did not. Instead, the Court decided to leave
the Guidelines intact, but to allow district courts the option of sentencing outside the Guidelines
when circumstances, including the § 3553(a) factors, warranted. See id. at 258-65. Defendant’s
argument on this point fails.
No. 05-1229                United States v. Barton                                                           Page 9


C.      Defendant’s sentence is reasonable.
         In assessing a sentence’s reasonableness, this court has focused on the district court’s
obligation to consider the factors listed in 18 U.S.C. § 3553(a)8 in arriving at an appropriate
sentence. See Webb, 403 F.3d at 383-85; Williams, 436 F.3d at 708. These tests have been
described as the procedural requirements of reasonableness review. See United States v. Buchanan,
449 F.3d 731, 735-741 (6th Cir. 2006) (Sutton, J., concurring). A district court “need not recite
these [§ 3553(a)] factors but must articulate its reasoning in deciding to impose a sentence in order
to allow for reasonable appellate review.” United States v. Kirby, 418 F.3d 621, 626 (6th Cir.2005).
Cf. United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006) (“Williams does not mean that a
Guidelines sentence will be found reasonable in the absence of evidence in the record that the
district court considered all of the relevant section 3553(a) factors.”). This court does not require
“explicit reference to the § 3553(a) factors in the imposition of identical alternative sentences.”
United States v. Till, 434 F.3d 880, 887 (6th Cir. 2006).
         In this case, the district court specifically read through the factors under 18 U.S.C. § 3553(a),
discussed those factors, and considered all of the factors that were relevant. Defendant argues that
his sentence is unreasonable because it is longer than necessary to achieve the district court’s aim
of deterrence in light of the fact that defendant suffered from serious mental health problems and
because defendant claims his crimes were comparatively mild. The district court considered
defendant’s mental health history in pronouncing the sentence. While the court recognized that
defendant’s mental health problems contributed to his crimes, the district court determined that
defendant’s mental health needs were better served by a longer sentence served in a facility where
he could receive adequate treatment. Indeed, in defendant’s own statement he indicated that, in his
view, he was released too early from his previous sentence of incarceration. While it is true that the
district court described defendant’s threats as “comparatively mild,” it qualified that statement when
it expressed doubt “that anybody that’s a bank teller and has a person say I have a gun I want
money” would have considered such a threat to be “mild.” Defendant’s claims that his mental
health history and the comparatively mild nature of his offense call for a lower sentence in this case
are unfounded.


        8
            18 U.S.C. § 3553(a) reads as follows:
        Factors to be considered in imposing a sentence.--The court shall impose a sentence sufficient, but
        not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.
        The court, in determining the particular sentence to be imposed, shall consider--
                 (1) the nature and circumstances of the offense and the history and characteristics of the
                 defendant;
                 (2) the need for the sentence imposed--
                           (A) to reflect the seriousness of the offense, to promote respect for the law, and to
                           provide just punishment for the offense;
                           (B) to afford adequate deterrence to criminal conduct;
                           (C) to protect the public from further crimes of the defendant; and
                           (D) to provide the defendant with needed educational or vocational training,
                           medical care, or other correctional treatment in the most effective manner;
                 (3) the kinds of sentences available;
                 (4) the kinds of sentence and the sentencing range established for--
                           (A) the applicable category of offense committed by the applicable category of defendant as
                           set forth in the guidelines--
                           ...
                 (5) any pertinent policy statement--
                 ...
                 (6) the need to avoid unwarranted sentence disparities among defendants with similar records who
                 have been found guilty of similar conduct; and
                 (7) the need to provide restitution to any victims of the offense.
No. 05-1229           United States v. Barton                                                   Page 10


         Defendant also relies on the fact that the district court declined to upwardly depart from the
Guidelines at the government’s request but then sentenced him above the advisory Guidelines range
it calculated. Defendant argues that such a turn of events is contradictory, or, at the very least,
unreasonable. The district court denied the government’s motion for upward departure because it
believed that defendant’s criminal history was adequately taken into account by the Guidelines
calculation. In its motion, the government’s sole reason for requesting an upward departure was that
defendant’s criminal history score did not adequately take into account his criminal history. The
district court disagreed with the government’s criminal history arguments.
        In sentencing defendant above the recommended Guidelines range, the district court cited
as its reasons that defendant was a “dangerous person” and that he “needs to be removed from
society.” The focus on the defendant’s level of danger to society indicates that deterrence was an
important consideration to the court in this case. It was not inconsistent for the district court to deny
the government’s request to upwardly depart from the Guidelines but then sentence defendant above
the Guidelines range, because the requested upward departure and the reason for sentencing
defendant above the Guidelines were based on different rationales. The need for deterrence
supported a sentence above the recommended Guidelines range, even though his criminal history
score adequately represented his criminal history. We find defendant’s sentence reasonable.
                                           CONCLUSION
        For the foregoing reasons, we AFFIRM the district court’s judgment.
No. 05-1229           United States v. Barton                                                  Page 11


                                        _________________
                                         CONCURRENCE
                                        _________________
        R. GUY COLE, JR., concurring. I agree with the majority’s conclusions on each of the three
issues before this court: Retroactive application of Booker does not violate the defendant’s due
process rights, the sentencing enhancement applied by the district court was supported by a
preponderance of evidence, and the defendant’s sentence was reasonable. I write to add an
alternative analysis on the first of these issues.
         The majority finds no due process concerns of an ex post facto variety in part because
Booker provides no guarantee that the Guideline range calculated by a sentencing court will have
a critical effect on a defendant’s sentence, given that the court is free to impose a sentence outside
of the range. As I understand the defendant’s argument, however, a due process concern exists
precisely because there is no longer a guarantee that he will receive a sentence within the appropriate
Guideline range.
        Nevertheless, I agree that the law provided the defendant sufficiently fair warning to satisfy
the Due Process Clause as interpreted by the Supreme Court in Rogers v. Tennessee, 532 U.S. 451
(2001). Like the majority, I prefer to rest this conclusion on more than the mere fact that the
defendant had fair warning of the statutory maximum for his crime. At the time the defendant
committed the conduct in question, he had notice not only of the elements of the crime, and of the
seriousness with which the crime was viewed as reflected by the statutory maximum, but also of the
factors that would aggravate or mitigate the severity of the offense. The district court sentenced the
defendant under the same Guidelines that were in effect before Booker and weighed the same
factors. The defendant was therefore on notice not only that the law attached consequences to bank
robbery, but also that the law attached additional consequences to, in this case, making a threat of
death while performing that bank robbery, or committing that bank robbery after having committed
other offenses. In my mind, the fact that the defendant had notice of these factors is more
compelling than the fact that he had notice of the statutory maximum for his offense, since Rogers
instructs us that one of our primary concerns should be with “attaching criminal penalties to what
previously had been innocent conduct.” See Rogers, 532 U.S. at 459. I see no explicit conflict,
however, between our Ex Post Facto Clause precedent such as United States v. Kussmaul, 987 F.2d
345, 351-52 (6th Cir. 1993), and our sister circuits’ resolution of the Booker retroactivity issue under
the Due Process Clause, since, as the majority points out, the Supreme Court has set forth different
analyses for these two spheres of jurisprudence.
        Finally, despite the Supreme Court’s instruction to analyze judicial decision-making under
the Due Process Clause differently from legislation under the Ex Post Facto Clause, I am not fully
convinced that the concerns about “arbitrary and potentially vindictive legislation,” see Weaver v.
Graham, 450 U.S. 24, 29 (1981), that inform Ex Post Facto Clause jurisprudence are completely
absent in this unique context, where a court sentencing a defendant after Booker has the opportunity
to affect directly and concretely the punishment that will attach to the defendant’s conduct. I believe
these concerns are answered, however, by the important role of this court’s reasonableness review,
which ensures that a sentencing court will not exercise its new discretion in an arbitrary or vindictive
manner.
       With these qualifications, I concur in the majority opinion.
