                               UNITED STATES COURT OF APPEALS

                                       FOR THE SECOND CIRCUIT

                                               August Term, 2004

(Argued: May 19, 2005                                                       Decided: October 17, 2005

                                                                            Errata Filed: November 3, 2005)

                                             Docket No. 04-4595-cr

UNITED STATES OF AMERICA,
                           Appellee,

                   v.

JOHN FULLER, also known as King John,
                           Defendant-Appellant.

Before: OAKES and CABRANES, Circuit Judges, and GOLDBERG , Judge.*

             We consider here whether a sentence imposed by the United States District Court for the

Southern District of New York (Colleen McMahon, Judge) that was styled “in the alternative”—i.e.,

as the sentence of the Court regardless of whether or not the U.S. Sentencing Guidelines were

binding—during the period after the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296

(2004), but before its decision in United States v. Booker, 125 S. Ct. 738 (2005), was error in light of the

subsequent teachings of the Supreme Court and our related jurisprudence, and if so whether such

error is harmless. Because, with the benefit of hindsight, we conclude that the sentence amounted

to error that we cannot deem harmless, we remand the cause to the District Court with instructions

to vacate defendant’s sentence and resentence him in conformity with our opinion in United States v.



         *
           The Honorable Richard W. Goldberg, Senior Judge of the United States Court of International Trade, sitting
by designation.

                                                          1
Fagans, 406 F.3d 138 (2d Cir. 2005).

        Inasmuch as the District Court’s four-level upward departure calculation was based upon the

Court’s analogy between defendant’s bartering of drugs in exchange for firearms and the sentencing

enhancement prescribed by Section 2K2.1(b)(5) of the U.S. Sentencing Guidelines, we conclude that

the District Court’s departure was not an abuse of discretion. We also hold that the District Court

provided an adequate, on-the-record statement explaining its upward departure, as required by 18

U.S.C. § 3553(c)(2). Finally, we hold that, in light of 18 U.S.C. §§ 3742(f)(2) and (f)(3), the District

Court’s failure to explain the basis for its departure in the written judgment does not provide a

separate basis for remand in the circumstances presented.

        Vacated and remanded.

                                 COLLEEN P. CASSIDY, The Legal Aid Society, Federal Defender
                                 Division, Appeals Bureau, New York, NY, for Defendant-Appellant.

                                 JUSTIN S. WEDDLE , Assistant United States Attorney (Peter G.
                                 Neiman, Assistant United States Attorney, of counsel; David N. Kelley,
                                 United States Attorney for the Southern District of New York, on the
                                 brief), United States Attorney’s Office for the Southern District of
                                 New York, New York, NY, for Appellee.

JOSÉ A. CABRANES, Circuit Judge:

        This appeal arises from a sentence imposed by the United States District Court for the

Southern District of New York (Colleen McMahon, Judge) after the Supreme Court’s June 24, 2004

decision in Blakely v. Washington, 542 U.S. 296 (2004), which raised doubt as to the constitutionality

of the then-binding U.S. Sentencing Guidelines, but prior to our August 12, 2004 decision in United

States v. Mincey, 380 F.3d 102 (2d Cir. 2004), vacated sub nom. Ferrell v. United States, 125 S. Ct. 1071

(2005), which directed district courts within the Circuit to continue applying the Sentencing

Guidelines in a mandatory fashion pending the Supreme Court’s resolution of United States v. Booker,

                                                      2
125 S. Ct. 738 (2005). We consider here whether the District Court’s practice of sentencing

defendant John Fuller “in the alternative”—that is, stating that the District Court would impose the

same sentence regardless of whether the U.S. Sentencing Guidelines were binding or not—during

the period after Blakely but before Booker was error in light of the subsequent teachings of the

Supreme Court and our related jurisprudence, and if so, whether such error is harmless.

        With the benefit of hindsight, we hold that: (1) the District Court erred when sentencing

Fuller; (2) Fuller preserved the error by raising a Sixth Amendment objection prior to his sentencing;

and (3) the District Court’s error was not harmless. Accordingly, we remand the cause to the

District Court with instructions to vacate Fuller’s sentence and resentence him in conformity with

our opinion in United States v. Fagans, 406 F.3d 138 (2d Cir. 2005).

        Furthermore, inasmuch as the District Court’s four-level upward departure calculation was

based upon the Court’s analogy between defendant’s bartering of drugs in exchange for firearms and

the sentencing enhancement prescribed by Section 2K2.1(b)(5) of the U.S. Sentencing Guidelines,

we conclude that the extent of the District Court’s departure was not an abuse of discretion. We

also hold that the District Court provided an adequate, on-the-record statement explaining its

upward departure, as required by 18 U.S.C. § 3553(c)(2). Finally, we hold that, in light of 18 U.S.C.

§§ 3742(f)(2) and (f)(3), the District Court’s failure to explain the basis for its departure in the

written judgment does not provide a separate basis for remand in the circumstances presented.

                                             BACKGROUND

        Defendant-appellant John Fuller pleaded guilty on May 10, 2001 to bail jumping, in violation




                                                     3
of 18 U.S.C. § 3146(a).1 On May 25, 2001, following a jury trial, Fuller was convicted of being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).2 On December 6, 2001, in

satisfaction of both convictions, the District Court sentenced Fuller principally to 151 months’

imprisonment in part based on multiple upward departures pursuant to the U.S. Sentencing

Guidelines (“Sentencing Guidelines” or “Guidelines”), which the District Court then reasonably

understood to be binding.

        Fuller appealed his judgment of conviction, arguing, inter alia, that the District Court erred in

its application of the Sentencing Guidelines. After affirming Fuller’s conviction, we vacated his

sentence on grounds not pertinent to the instant appeal and remanded the cause to the District

Court for resentencing. United States v. Fuller, 332 F.3d 60, 68 (2d Cir. 2003).

        On July 14, 2004, in the immediate aftermath of the Supreme Court’s decision in Blakely v.

Washington, 542 U.S. 296 (2004)—which held unconstitutional the State of Washington’s sentencing



        1
            18 U.S.C. § 3146(a) provides, in pertinent part, that

                    [w]hoever, having been released under this chapter knowingly . . . fails to appear before a
                    court as required by the conditions of release[ ] or . . . fails to surrender for service of
                    sentence pursuant to a court ord er[ ] sh all be pun ished as provid ed in sub section (b) of this
                    section.

        18 U.S.C. § 3146(b) provides, in pertinent part, that

                    [t]he punishm ent fo r an offense under this section is . . . if the person w as released in
                    connection with a charge of, or while awaiting sentence, surrender for service of sentence, or
                    appeal or certiorari after conviction for . . . an offense punishab le by imprisonm ent for a
                    term of five years or more, a fine under this title or imprisonment for not more than five
                    years, or both[.]

        2
            18 U.S.C. § 922(g) provides, in pertinent part, that

                    [i]t shall be unlawful for any person . . . who has been convicted in any court of, a crime
                    pun ishable by imp risonment fo r a term exceed ing one year [ ] . . . to ship o r transport in
                    interstate or foreign commerce, or possess in or affecting commerce, any firearm or
                    ammunition; or to receive any firearm or ammunition which has been shipped or transported
                    in interstate or foreign commerce.

                                                                4
scheme—but before the Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005),

Judge McMahon filed an opinion in United States v. Einstman, 325 F. Supp. 2d 373 (S.D.N.Y. 2004),

in which she concluded that the Sentencing Guidelines were unconstitutional and that judges must

“return to indeterminate sentencing, in which [they] . . . consider all relevant factors and . . .

sentence the defendant anywhere between the statutory minimum (if there be one) and the statutory

maximum. . . .” Id. at 380-81. Accordingly, at Fuller’s resentencing hearing on August 5, 2004, the

District Court announced two sentences in the alternative: the first sentence assumed that the

Sentencing Guidelines were unconstitutional and therefore non-binding, and the second sentence

adhered to the Sentencing Guidelines as if they were constitutional and, hence, binding. Judge

McMahon stated on the record: “I am going to violate my usual rule and I am going to impose both

types of sentences. So that the Circuit is aware, that is what I decided to do.” Tr. of Sentencing

Hr’g, Aug. 5, 2004, at 18.

         Assuming first that the Sentencing Guidelines were non-binding, the District Court

sentenced Fuller principally to 151 months’ imprisonment, which consisted of a ten-year term for

the firearm offense and a five-year term for the bail-jumping offense.3 Assuming alternatively that

the Guidelines were mandatory, the District Court imposed an identical sentence, arriving at 151

months of imprisonment after applying several enhancements and upward departures, including a

four-level upward departure pursuant to U.S.S.G. § 5K2.0 on the ground that Fuller had bartered

drugs in exchange for firearms. Id. at 21.

         At his sentencing hearing, Fuller’s counsel raised an objection pursuant to Apprendi v. New



         3
           Following the method of sentencing we recommended in United S tates v. Fuller, 332 F.3d 60, 68 (2003), the
District Court specified that of the five-year term, twenty-nine months would run concurrently and thirty-one months
would run consec utively to the ten-year term , yielding a total of 151 months.

                                                           5
Jersey, 530 U.S. 466 (2000), referring to the Supreme Court’s statement that “[o]ther than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. Fuller’s

counsel also objected on the ground that “sentencing in the alternative is illegal in and of itself.” Tr.

of Sentencing Hr’g, Aug. 5, 2004, at 25.

                                              DISCUSSION

         Fuller raises three interrelated claims on appeal. First, he asserts that notwithstanding the

District Court’s issuance of an “alternative” non-Guidelines sentence, the District Court’s sentence

did not conform to the requirements of United States v. Booker, 125 S. Ct. 738 (2005). Def.-

Appellant’s Supplemental Letter Br. of May 31, 2005, at 3. Fuller further argues that because he

properly preserved an objection to this error and because this error was not harmless, we should

vacate the District Court’s sentence and remand for resentencing in accordance with our opinion in

United States v. Fagans, 406 F.3d 138 (2d Cir. 2005). See Def.-Appellant’s Supplemental Letter Br. of

May 24, 2005, at 1-8.

         Second, Fuller requests, for the purpose of guiding such a remand, that we reject as

“unreasonable” the four-level upward departure that the District Court applied on the basis of what

it found to be clear and convincing evidence that Fuller had bartered drugs in exchange for firearms.

Id. at 6-7.

         Third and finally, Fuller asserts that the District Court erred in failing to provide an adequate

statement—both on the record at sentencing and in its written order of judgment—explaining the

upward departures that it applied in arriving at Fuller’s sentence. See Appellant’s Br. at 12, 14.




                                                     6
I.       B o o ke r Error

         In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court held that the mandatory

nature of the U.S. Sentencing Guidelines violated the Sixth Amendment. Id. at 749-50. In its

remedy opinion in Booker, the Court concluded that the Guidelines are now advisory, id. at 757, and

that the proper standard of review for sentences is “reasonableness,” see id. at 765-66. In United

States v. Crosby, 397 F.3d 103 (2d Cir. 2005), we explained that pre-Booker sentences, regardless of

their length, would “not be found reasonable” if (1) “a sentencing judge committed a procedural

error by selecting a sentence in violation of applicable [post-Booker] law” and (2) “that error is not

harmless and is properly preserved.” Id. at 114. Regarding the first prong of our post-Booker

inquiry—whether a district court committed procedural error—we held that “a sentencing judge

would commit a statutory error in violation of [18 U.S.C.] section 3553(a) if the judge failed to

‘consider’ the applicable Guidelines range . . . as well as other factors listed in section 3553(a), and

instead simply selected what the judge deemed an appropriate sentence without such required consideration.” Crosby,

397 F.3d at 115 (emphasis added).

         The Government asserts that because the District Court “correctly anticipated Booker’s

holding that the Guidelines were advisory, and imposed a discretionary, non-Guidelines sentence,”

the District Court “committed no error at sentencing.” Appellee’s Supplemental Letter Br. of May

27, 2005, at 1. We disagree. When considering the possibility of non-binding Guidelines, the

District Court stated:

         [M]y position on the Guidelines is that . . . either they exist in their entirety . . . or
         they don’t exist at all; in which case, we revert to a pre-1986 sentencing scheme
         under which a judge, in her discretion, can sentence the defendant anywhere
         between the statutory minimum, if there be one, for the crime and the statutory
         maximum defined in the traditional non-Blakely way.



                                                          7
Tr. of Sentencing Hr’g, Aug. 5, 2004, at 16. This prediction of the post-Booker sentencing

landscape turned out to be incorrect and inconsistent with our later conclusion in Crosby that “it

would be a mistake to think that, after Booker/Fanfan, district judges may return to the sentencing

regime that existed before 1987 and exercise unfettered discretion to select any sentence within the

applicable statutory maximum and minimum.” Crosby, 397 F.3d at 113-14. Because the District

Court imposed its alternative non-Guidelines sentence on the assumption that the Guidelines

“don’t exist at all”—and thereby acted on a proverbial blank slate without explicitly considering all

the factors listed in 18 U.S.C. § 3553(a), including the Guidelines, see 18 U.S.C. § 3553(a)(4)(A), as

required by Crosby, see 397 F.3d at 111—we hold, once again with the benefit of hindsight, that the

District Court erred in formulating Fuller’s sentence.

        By raising a Blakely objection to the compulsory application of the Sentencing Guidelines

prior to sentencing, Fuller preserved the error; accordingly, “the procedure for applying plain-error

analysis that we set forth in Crosby is inapplicable.” Fagans, 406 F. 3d at 140-41. Instead, the “issue

upon review of the preserved error is whether we should affirm, if the Government has shown the

error to be harmless, or remand for resentencing, if such a showing has not been made.” United

States v. Lake, 419 F.3d 111, 113 n.2 (2d Cir. 2005).

        In Crosby, we specifically considered and rejected the possibility, albeit in considered dicta,

that sentencing in the alternative prior to Booker would be harmless error, concluding that “even if a

judge, prior to Booker[ ], indicated an alternative sentence that would have been imposed if

compliance with the Guidelines were not required, that alternative sentence is not necessarily the

same one that the judge would have imposed in compliance with the duty to consider all of the

factors listed in section 3553(a).” Crosby, 397 F.3d at 118. We added that “such an alternative



                                                   8
 sentence is not necessarily the same one that the judge would have imposed after presentation by

 the Government of aggravating circumstances or by the defendant of mitigating circumstances that

 existed at the time but were not available for consideration under the mandatory Guidelines

 regime.” Id. We now adopt these conclusions and hold that the District Court’s method of

 sentencing in the alternative—between the time of the Supreme Court’s landmark decisions in

 Blakely and Booker, and before our August 12, 2004 decision in United States v. Mincey, 380 F.3d 102,

 106 (2d Cir. 2004) (directing district courts to continue applying, in mandatory fashion, the

 Sentencing Guidelines pending resolution of Booker)—was not harmless error.4

             The Government contends that, in light of Judge McMahon’s opinion in United States v.

 Einstman, 325 F. Supp. 2d 373 (S.D.N.Y. 2004), any error was harmless because “[t]he parties knew

 [or should have known] in advance of sentencing that the District Court believed the Guidelines

 were no longer mandatory, and thus that there were no ‘aggravating’ or ‘mitigating’ circumstances

 that ‘were not available for consideration.’” Appellee’s Supplemental Letter Br. of May 27, 2005, at

 8. The mere publication of a district judge’s pre-Booker views in connection with another case did

 not, however, provide Fuller with sufficient opportunity to present arguments tailored specifically

 to the post-Booker sentencing landscape. Nor can we say with any confidence “what considerations

 counsel for both sides might have brought to the sentencing judge’s attention had they known that

 they could,” as a matter of law, “urge the judge to impose a non-Guidelines sentence.” Crosby, 397

 F.3d at 115.

             Although we commend the care with which the District Court resentenced Fuller in August



         4
           While “we cannot say that it is likely that [the District Court] would have imposed a different sentence under
the post-Booker regim e,” we nevertheless conclude that the Government “ha s not shown that the possibility is so rem ote
as to render the sentencing error harmless.” Lake, 419 F.3d at 114.

                                                            9
 2004 amidst uncertainty concerning the status of the Sentencing Guidelines, for the reasons stated

 above, we remand to the District Court for resentencing in accordance with United States v. Fagans,

 406 F.3d 138 (2d Cir. 2005).


 II.         Reasonableness of the District Court’s Upward Departure

             Because 18 U.S.C. § 3553(a) requires a district court to consider, inter alia, the applicable

 Guidelines range when formulating a sentence, we have noted that when we remand for

 resentencing, it will often “be preferable to adjudicate [an outstanding] calculation issue promptly

 so that subsequent sentencing proceedings will occur in light of a correct calculation.” Fagans, 406

 F.3d at 141; see also United States v. Canova, 412 F.3d 331, 335 (2d Cir. 2005) (“Because the

 reasonableness of a sentence, even under the discretionary regime recognized in Booker, depends in

 part on a district court’s consideration of the Sentencing Guidelines, . . . a significant error in the

 calculation or construction of the Guidelines may preclude affirmance.”). Recognizing the value of

 reviewing a contested departure, even post-Booker, see United States v. Selioutsky, 409 F.3d 114, 118

 (2d Cir. 2005), and mindful that both parties have requested that we do so in this case, see Def.-

 Appellant’s Supplemental Letter Br. of May, 24, 2005, at 7-8; Appellee’s Supplemental Letter Br. of

 May 27, 2005, at 9-10, we consider here whether the District Court, in calculating the applicable

 Guidelines sentence, erred in applying a four-level upward departure for Fuller’s bartering of drugs

 in exchange for firearms.5

             Following Booker , on sentencing appeals, we review a district court’s factual determinations

 for clear error, its legal conclusions de novo and its exercises of discretion with respect to departures


         5
          We note that “disposing of [Fuller’s] non-Sixth Amen dment claims prior to rem and forecloses future
challenges to his sentence on these grounds, though it does not foreclose reasonableness review of [Fuller’s] sentence on
other grounds.” United S tates v. Weisser, 417 F.3d 336, 346 (2d Cir. 2005).

                                                           10
 for abuse of discretion. See Selioutsky, 409 F.3d at 118-19; see also United States v. Weisser, 417 F.3d

 336, 346 (2d Cir. 2005) (“When reviewing a district court’s application of the Guidelines in the

 post-Booker era, we examine questions of law de novo and issues of fact for clear error.”); United States

 v. Garcia, 413 F.3d 201, 221-22 (2d Cir. 2005) (acknowledging that a clear error standard of review

 continues to apply to appellate challenges to judicial fact-finding at sentencing after Booker). A

 district court’s decision to depart pursuant to U.S.S.G. § 5K2.0 (providing that a court “may

 depart”) is discretionary, see Selioutsky, 409 F.3d at 119, and we therefore review the departure at

 issue here for abuse of discretion.

             Because “[a]n error in determining the applicable Guideline range or the availability of

 departure authority would be the type of procedural error that could render a sentence

 unreasonable under Booker,” Selioutsky, 409 F.3d at 118, we decline to “forego such review on the

 theory that the District Court would have imposed [the same] sentence as a non-Guidelines

 sentence under the post-Booker regime, in which event any error in using departure authority to

 select the sentence that was imposed would be harmless,” id. at 118 n.7.6

             A district court abuses its discretion “when (1) its decision rests on an error of law (such as

 application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its

 decision—though not necessarily the product of a legal error or a clearly erroneous factual

 finding—cannot be located within the range of permissible decisions.” Zervos v. Verizon N.Y., Inc.,

 252 F.3d 163, 169 (2d Cir. 2001) (footnotes omitted).

             Where, as here, a defendant has failed to object to an alleged sentencing impropriety on the


         6
           We reiterate that upon remand, the District Court may “fairly consider policy statements concerning
departures and fairly decide to impose a non-Guidelines sentence without ‘definitively resolv[ing]’ close questions
regarding the ‘precise meaning or application of a [departure] policy statement.’” Canova, 412 F.3d at 358 n.28 (quoting
Crosby, 397 F.3d at 112) (bracketed text in Canova).

                                                           11
 record in the district court, we review for plain error, requiring the defendant to establish “(1) error,

 (2) that is plain, and (3) that affects substantial rights.” United States v. Dos Reis, 369 F.3d 143, 148

 (2d Cir. 2004) (internal quotation marks and citation omitted) (alterations in original); see also United

 States v. Molina, 356 F.3d 269, 277 (2d Cir. 2004) (recognizing that failure to preserve an objection

 under 18 U.S.C. § 3553(c) gives rise to plain error review); but see United States v. Lewis, ___ F.3d

 ___, 2005 WL 2234105, at *3 (2d Cir. Sept. 15, 2005) (conducting plain error review where

 defendant failed to raise an 18 U.S.C. § 3553(c) objection at sentencing, but commenting that

 whether plain error review is required in such circumstances is “unclear”). “An error is ‘plain’ if it

 is ‘clear’ or ‘obvious’ at the time of appellate consideration.” United States v. Thomas, 274 F.3d 655,

 667 (2d Cir. 2001)(en banc).

              Fuller does not challenge the District Court’s finding that he bartered drugs for firearms,

 nor does he dispute that such a finding represented an appropriate basis for an upward departure

 pursuant to U.S.S.G. § 5K2.0.7 Rather, Fuller contends that the extent of the District Court’s

 departure—which raised the applicable Guidelines range from 78-97 months to 121-151

 months—constituted an abuse of discretion because the District Court failed to provide any valid

 “penalogical explanation” for its departure calculation. Def.-Appellant’s Br. at 12. According to

 Fuller, the District Court based that calculation solely on its intention to “‘end up at the same place

 where [it] ended up before.’” Id. at 11 (quoting Tr. of Sentencing Hr’g, Aug. 5, 2004, at 18-19).

              On appeal, the Government asserts that the District Court’s four-level upward departure

 was based upon the Court’s analogy between Fuller’s conduct and the conduct described in



          7
          Fuller’s co ncession in this re gard is consistent with our conclusion fo llowing F uller’s first appeal that “[s]im ply
because the District Court used the bartering activity for the wrong kind of depa rture is not a reason to preclud e its use
on remand for a perm issible type of departure.” Fuller, 332 F.3d at 67.

                                                               12
U.S.S.G. § 2K2.1(b)(5),8 see Appellees’ Br. at 32—namely, “possess[ion] or transfer[ ][of] any

firearm or ammunition with knowledge, intent, or reason to believe that it would be used or

possessed in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5). Indeed, the

Government repeatedly urged the District Court—both in its pre-sentencing submissions and

during Fuller’s sentencing hearing—to adopt a four-level departure on this basis. See Gov’t’s

Resentencing Mem., at 14-15 (asserting that “Section 2K2.1(b)(5) of the Guidelines provides a

helpful measure of the seriousness of the combination of gun crimes with other felonies”); Tr. of

Sentencing Hr’g, Aug. 5, 2004, at 7 (recommending to the Court that “in determining the

magnitude of an upward departure . . . one helpful guide post would be the four-level enhancement

which is contained in Section 2K2.1 [of the Sentencing Guidelines]”).

          After hearing the Government’s explanation for its recommended Guidelines

sentence—which included a four-level upward departure predicated on an analogy between

bartering drugs for firearms and committing felonies in connection with the possession or transfer

of firearms—the District Court confirmed that the resulting sentencing range would be 121 to 151

months (which reflected the requested four-level departure), stated“Okay,” and then proceeded to

ask the Government what sentence would be appropriate under an alternative, “indeterminate

sentencing scheme.” Tr. of Sentencing Hr’g, Aug. 5, 2004, at 8. Later in the proceeding, the Court

imposed the exact Guidelines sentence the Government had recommended, which included what it

described as a “four-level upward departure . . . based on the bartering of drugs as payment for


      8
          U.S.S.G. § 2K 2.1(b)(5) pro vides, in relevant part, that

      [i]f the defendant used or possessed any firearm or ammunition in connection with another felony
      offense; or possessed or transfe rred any firearm o r ammu nition with know ledge, intent, or reason to
      believe that it would be used or possessed in connection with another felony offense, increase [the
      applicable offense level] by 4 levels.

                                                             13
firearms.” Id. at 21. In these circumstances, we conclude that the District Court clearly

incorporated the Government’s reasoning that a four-level upward departure was appropriate based

on an analogy between Fuller’s conduct and the conduct described in § 2K2.1(b)(5).

        Fuller maintains that the extent of the District Court’s four-level upward departure was

based solely on its intention “to achieve exactly the same sentence as that which had been vacated

on appeal.” Def.-Appellant’s Br. at 11. In making this claim, Fuller relies principally on the

following statement by the Court:

        Obviously, my inclination was to depart upwardly, and the Circuit said I could not
        do that horizontally on the basis that I chose; that is, I could not depart upwardly on
        the Criminal History Category, but I could do so vertically on the offense level, and I
        intend to do so. And I intend to do so by four levels, so that I end up at the same place
        where I ended up before.


Tr. of Sentencing Hr’g, Aug. 5, 2004, at 18-19 (emphasis added). We reject Fuller’s argument that

this statement demonstrates that the District Court had a predetermined goal of arriving at the

same sentence it had imposed prior to Fuller’s first appeal. It is commonplace for a district judge

to be required to reconsider or explain more fully a sentencing decision on remand, and it is not

necessarily inappropriate, much less error, for a judge to impose the same sentence he arrived at

prior to appeal. In any event, in the circumstances presented here, we understand the District

Court’s statement merely as a comment on the sentencing range it had selected and not as an

articulation of its rationale. We have no reason to doubt the District Court’s assurance that it

applied “a four-level upward departure . . . based on the bartering of drugs as payment for

firearms.” Id. at 21.

         Inasmuch as the District Court based its upward departure on an analogy to

U.S.S.G. § 2K2.1(b)(5)—which prescribes more severe punishment for the sale of firearms in

                                                  14
connection with committing another felony—we hold that the District Court’s reasoning was

“sufficient to justify the magnitude of the departure.” United States v. Campbell, 967 F.2d 20, 26 (2d

Cir. 1992) (internal quotation marks omitted). The practice of relying on analogous provisions of

the Sentencing Guidelines when calculating the proper extent of a departure is well established.

See, e.g., United States v. Amirault, 224 F.3d 9, 12 (1st Cir. 2000) (“A sentencing court is free to make

suitable comparisons and draw plausible analogies in considering whether to depart from the

guideline sentencing range.”); United States v. Kalady, 941 F.2d 1090, 1101 (10th Cir. 1991) (“A

sentence imposed based upon either extrapolation or analogy from the [G]uidelines will ordinarily

meet the requirements of proportionality and uniformity.”). The fact that particular conduct fails

to warrant a mandatory sentence enhancement does not preclude a court from imposing a

discretionary upward departure on the basis of that conduct. See United States v. Speenburgh, 990 F.2d

72, 76 (2d Cir. 1993) (“The authority for an adjustment does not inevitably carry the negative

implication that facts that fail to qualify for the adjustment are ineligible for a departure.”).

        The four-level enhancement mandated by the Sentencing Commission for the conduct

described in U.S.S.G. § 2K2.1(b)(5) reflects the special danger that arises when guns are linked with

other criminal conduct—a danger and virtual truism that we have repeatedly acknowledged by

affirming sentence enhancements imposed under § 2K2.1(b)(5). See, e.g., United States v. Ortega, 385

F.3d 120, 123 (2d Cir. 2004); United States v. Martin, 78 F.3d 808, 812-13 (2d Cir. 1996). Fuller does

not challenge the strength of the analogy at issue here; rather, he rests on the argument that the

District Court chose a four-level departure solely for the purpose of arriving at the same sentence it

had previously imposed.

         Because we conclude that Fuller’s conduct may be fairly analogized to the conduct



                                                   15
described in § 2K2.1(b)(5), and we are mindful of the need for “considerable deference” to district

courts’ determinations as to the extent of departures, United States v. Tropiano, 50 F.3d 157, 162 (2d

Cir. 1995), we hold that Fuller has not demonstrated that the District Court erred, much less plainly

erred or abused its discretion, in upwardly departing by four levels based on Fuller’s bartering of

drugs for firearms in connection with the offense for which he was convicted.


III.       The District Court’s Statement of Reasons for its Upward Departure

           Not only was the logic behind the District Court’s four-level upward departure apparent

from the context, but the District Court also provided an adequate, on-the-record statement

explaining its upward departure, as required by 18 U.S.C. § 3553(c). 9 As a panel of this Circuit

recently noted in United States v. Lewis, ___ F.3d ___, 2005 WL 2234105 (2d Cir. Sept. 15, 2005),

“18 U.S.C. § 3553(c), which Booker ‘left unimpaired,’” id. at *5 (quoting Crosby, 397 F.3d at 116),

requires “that a district court ‘at the time of sentencing, shall state in open court the reasons for its

imposition of the particular sentence,’” id. (quoting 18 U.S.C. § 3553(c)). Furthermore, § 3553(c)(2)

provides that if a sentence is outside the applicable Guidelines range, the sentencing court must

state “the specific reason for the imposition of a sentence different from that described.” 18 U.S.C.

§ 3553(c)(2). A district court’s failure to comply “with the general provisions of § 3553(c) . . . , let

alone the specific requirements of § 3553(c)(2) regarding [the explanation of reasons for] departures



       9
           18 U.S.C. § 3553(c) provides, in relevant part, that

       [t]he court, at the time of sentencing, shall state in open court the reasons for its imposition of the
       particular sentence, and, if the sentence—
       ...
                 (2) is not of the kind, or is outside the range [provided in the Guidelines,] 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 except to the extent
                 the court relies upon statements received in camera. . .

                                                             16
from recommended sentencing ranges” constitutes “plain error,” even when the length of the

resulting sentence would otherwise be reasonable. Id. at *6. Lewis held that such error affects a

defendant’s “substantial rights” by denying him “the right to argue more effectively . . . whether . . .

a sentence is ‘reasonable.’” Id. at *7.

        The District Court relied on a reasonable analogy between Fuller’s conduct and the conduct

described in U.S.S.G. § 2K2.1(b)(5), and explicitly stated on the record that the departure was

“based on the bartering of drugs as payment for firearms.” Tr. of Sentencing Hr’g, Aug. 5, 2004, at

21. Accordingly, we hold that the District Court provided an adequate oral statement concerning

its specific reasons for imposing the sentence that it did. Although preferably the District Court

would have provided more detail concerning the extent of its departure, we do not consider the

absence of that detail an independent basis for remand where, as here, the District Court’s

statement was sufficient to provide Fuller of “a platform upon which to build an argument that

[his] sentence is unreasonable.” Lewis, 2005 WL 2234105, at *9.

            Finally, Fuller contends that the District Court erred in failing to provide a written

statement of its reasons for applying an upward departure, as required by 18 U.S.C. § 3553(c)(2).

Def.-Appellant’s Br. at 14. In United States v. Santiago, 384 F.3d 31 (2d Cir. 2004), we read 18 U.S.C.

§§ 3742(f)(2) and (f)(3)10 in accordance with their plain language to suggest that so long as “we

       10
            18 U.S.C. § 3742(f) provides, in relevant part, that

       [i]f the cou rt of appeals determines that—

       (1) the sentence was imposed in violation of law or imposed as a result of an incorrect application of the
       sentencing gu idelines, the court shall rem and the case for further sentencing proceed ings . . . ;

       (2) the sentence is outside the applicable guideline range and the district court failed to provide the required
       statem ent of reasons in the order of judgm ent and com mitme nt, or the de parture is base d on an im permissible
       factor, or is to an unreasonable degree, or the sentence was imposed for an offense for which there is no
       applicable sentencing guideline and is plainly reasonable, it shall state specific reasons for its conclusions and—



                                                             17
 ultimately decide that a sentence is neither ‘too high’ . . . nor ‘too low’ . . ., we do not have any

 obligation to remand” in cases where the district court has failed to provide a separate written

 explanation for its departures. Id. at 36-37.11 For reasons unstated, however, we declined to

 interpret these statutory provisions definitively.

          Our sister circuits that have confronted this issue have unanimously held, as a matter of

 statutory interpretation, that where a reviewing court determines, based upon the statements of the

 district court in the record, that an upward departure is otherwise reasonable, the district court’s

 failure to provide a written explanation in the order of judgment is not a separate cause for remand.

 See United States v. Cooper, 394 F.3d 172 (3d Cir. 2005) (“We agree with the other Courts of Appeal[s]

 that have concluded that failing to provide a written explanation for a departure is not cause for

 remand if the departure is otherwise permissible and the district court’s reasoning is persuasive.”);

 United States v. Daychild, 357 F.3d 1082, 1107-08 (9th Cir. 2004) (holding, based on the language of

 18 U.S.C. § 3742(f), that remand is not required in these circumstances); United States v. Orchard, 332

 F.3d 1133, 1141 n.7 (8th Cir. 2003) (same).

          We now join our sister circuits in holding that where a reviewing court determines that a

 departure is neither “too high” nor “too low” within the meaning of 18 U.S.C. § 3742 (f)(2), a



                   (A) if it determines that the sentence is too high . . . it shall set aside the sentence and reman d the case
                   ...;

                   (B) if it determines that the sentence is too low . . . it shall set aside the sentence and reman d the case
                   ...;

         (3) the sentence is not described in paragraph (1) or (2), it shall affirm the sentence.

         11
            As we noted in Santiago, interpreting 18 U.S.C. § 3742(f)(1) to imply that “a district court’s failure to provide a
written statement of reasons qualifies as a violation of law that automatically requires a remand” would render the
statutory language in 18 U.S.C. § 3742(f)(2) “entirely superfluous.” Santiago, 384 F.3d at 37. Accordingly, we rejected as
“disfavored” that reading of § 3742 (f)(1) on the ground that it “violat[es] a basic tenet of statutory interpretation.” Id.
(quoting DeM aria v. Andersen, 318 F.3d 170, 177 (2d Cir. 2003)) (alteration in original).

                                                              18
district court’s failure to include in the written judgment an explanation for its departure does not

provide an independent basis for remand. See 18 U.S.C. § 3742(f)(3). Nonetheless, we note that

for the purpose of facilitating reasonableness review, the better practice is for the district court to

record in its written order of judgment an explanation for all Guidelines departures.

                                             CONCLUSION

        In sum, we hold that:

        (1) despite sentencing Fuller “in the alternative”—that is, in part on the assumption that the

Sentencing Guidelines were not binding—the District Court erred in not correctly predicting that it

would be required to consider all 18 U.S.C. § 3553(a) factors, as later specified by United States v.

Crosby, 397 F.3d 103 (2d Cir. 2005);

        (2) Fuller preserved this error by raising an Apprendi objection prior to his sentencing;

        (3) neither the District Court’s mandatory application of the Sentencing Guidelines nor its

alternative, purely discretionary, sentencing amounted to harmless error;

        (4) inasmuch as the District Court’s four-level upward departure was based upon its analogy

between Fuller’s bartering of drugs in exchange for firearms and the sentencing departure

prescribed by Section 2K2.1(b)(5) of the U.S. Sentencing Guidelines, the District Court’s departure

was neither plain error nor an abuse of discretion;

        (5) the District Court adequately stated in open court the specific reason for its upward

departure from the Guidelines range, in satisfaction of 18 U.S.C. § 3553(c); and

        (6) in light of 18 U.S.C. §§ 3742(f)(2) and (f)(3), the District Court’s failure to explain its

departure in the written judgment does not provide a separate basis for remand in the

circumstances presented.



                                                   19
                                 *              *                  *

        For the reasons stated above, we REMAND the cause to the District Court with

instructions to vacate Fuller’s sentence and resentence him in conformity with this opinion and our

opinion in United States v. Fagans, 406 F.3d 138 (2d Cir. 2005).




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