                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 06a0295p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                         X
                                    Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                          -
                                                          -
                                                          -
                                                              No. 05-5241
            v.
                                                          ,
                                                           >
 JANELL CAGE,                                             -
                                 Defendant-Appellant. -
                                                         N
                           Appeal from the United States District Court
                        for the Western District of Tennessee at Memphis.
                       No. 03-20454—Samuel H. Mays, Jr., District Judge.
                                    Argued: March 16, 2006
                              Decided and Filed: August 15, 2006
                 Before: BATCHELDER, CLAY, and McKEAGUE, Circuit Judges.
                                       _________________
                                           COUNSEL
ARGUED: Edwin A. Perry, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE
WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant. Camille R.
McMullen, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: April R. Goode, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE
WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant. Camille R.
McMullen, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
     BATCHELDER, J., delivered the opinion of the court, in which McKEAGUE, J., joined.
CLAY, J. (pp. 8-11), delivered a separate dissenting opinion.
                                       _________________
                                           OPINION
                                       _________________
        ALICE M. BATCHELDER, Circuit Judge. On November 25, 2003, a federal grand jury
charged defendant-appellant, Janell Cage (“Cage”), with knowingly and with intent to defraud
possessing fifteen access devices in violation of 18 U.S.C. § 1029(a)(2) and 18 U.S.C. § 3147(1).
Cage pleaded guilty to Counts 1 and 2, and the district court sentenced her to 37 months in prison
followed by two years of supervised release. At the sentencing hearing the court stated that a
sentence that falls within the Guidelines range enjoys a presumption of reasonableness. The court
sentenced Cage at the bottom of the recommended range. Cage filed this timely appeal challenging
the district court’s method of sentencing and the reasonableness of her sentence under United States


                                                 1
No. 05-5241           United States v. Cage                                                      Page 2


v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). For the following reasons, we AFFIRM the district
court’s determination.
                                                  I.
        Janell Cage has a history of engaging in credit card and access device fraud. From December
2002 through May 2003, Cage used her position as a medical transcriptionist to access confidential
information and fraudulently open new credit accounts. She submitted over 30 credit applications,
withdrew cash advances, and purchased and insured motor vehicles. Cage admitted using her
employment to obtain patients’ names, dates of birth, and Social Security numbers that she then used
to open and take over credit card accounts. Her victims’ total losses from her conduct exceeded
$132,000. Cage was indicted on June 30, 2003, on several fraud counts. She pleaded guilty to one
count of access device fraud in violation of 18 U.S.C. § 1029 (a)(2), and was sentenced to 30 months
in prison, followed by three years of supervised release. See United States v. Janell Cage, 134 Fed.
Appx. 833, 834 (6th Cir. 2005). She appealed, and on May 13, 2005, her case was remanded for
resentencing consistent with Booker. Id. at 838.
        After she was indicted but before she was sentenced for those offenses, Cage again engaged
in access device fraud. Between August and November 2003, Cage reactivated several patient
accounts to run credit reports in order to take over credit card accounts or submit fraudulent
applications. She fraudulently used credit cards in the names of Nadine King and Phyllis Wilkie to
purchase merchandise in excess of $28,000, and used another patient’s name to submit additional
loan applications. A search of Cage’s residence pursuant to a search warrant revealed more
evidence of access device fraud and purchases made with fraudulent accounts. The total loss
attributable to her conduct was $108,126.67.
       On November 25, 2003, Cage was indicted for violating 18 U.S.C. § 1029(a)(2) and 18
U.S.C. § 3147(1), giving rise to the instant case. On September 29, 2004, Cage pleaded guilty to
Counts 1 and 2 of the indictment and, on February 1, 2005, the district court sentenced her to 37
months in prison to run concurrently with her previous 30 month sentence, followed by two years
of supervised release and restitution.
         Cage’s sentencing hearing was held on February 1, 2005. At the outset of the hearing, the
district court recognized “that we are proceeding under the new regime, the post-Booker regime”
whereby sentencing is discretionary and the court is obligated to “consider[] the Sentencing
Guidelines and the Guideline ranges before the court does anything else.” The court further stated:
       As a general proposition, I suspect the court will be sentencing in the Guidelines
       even though the sentencing Guidelines are no longer mandatory. Because one test
       of reasonableness is . . . whether the court has considered the Guidelines. But it does
       mean that the court can depart upward or downward under the same circumstances
       that it would have departed under the Guidelines. And it means that the court can
       move away from the Guidelines if the court thinks that that’s necessary to impose a
       reasonable sentence.
        The court explained that in light of Booker it could impose a Guidelines sentence, apply
Guidelines standards under the exceptions provided in the Guidelines, or impose a non-Guidelines
sentence. The district court indicated that any departure from the Guidelines would be pursuant to
the factors prescribed in 18 U.S.C. § 3553(a).
        Cage did not object to the underlying facts set forth in the pre-sentence report and, based on
those facts, the district court properly calculated Cage’s sentence under the Guidelines, finding that
Cage’s total offense level was 19, her criminal history category was 3, and the resulting Sentencing
Guidelines range was 37 to 46 months. Cage requested a non-Guidelines sentence, asking the court
No. 05-5241              United States v. Cage                                                                    Page 3


for a downward departure in consideration of her young children and family situation. The court
acknowledged the presence of Cage’s parents and small children, and heard testimony about the
present family situation from Cage’s husband. Nevertheless, the court declined to depart from the
Guidelines.
       After noting the tragedy of Cage’s family situation, the court observed that such tragedy is
a regular consequence of criminal conduct, and highlighted the devastating effect that Cage’s
conduct had on her victims and their families. The court added that the seriousness of Cage’s
continued criminal conduct, even after her initial arrest and prosecution, weighed against a
downward departure from the Guidelines. The court explained:
        The first issue is whether the court should sentence in accordance with the
        Guidelines. And I believe the sentence under the Guidelines, considering all of the
        circumstances . . . in this case, will be reasonable. Under Booker, there is a
        presumption in favor of the Guidelines because the Guidelines express the public
        policy and the intention of Congress as to the court’s authority of these matters and
        the considerations that the court should address. And I think that . . . a sentence
        under the Guidelines would be a reasonable sentence.
The court then sentenced Cage to 37 months of incarceration at a boot camp facility, if eligible, to
run concurrently with her earlier 30 month term, followed by two years of supervised release, and
ordered her to pay $45,052.32 in restitution.
                                                         II.
        After United States v. Booker invalidated the mandatory use of the Sentencing Guidelines
and declared them “effectively advisory,” the district court has been tasked with imposing “‘a
sentence sufficient, but not greater than necessary to comply with the purposes’ of § 3553(a)(2).”
United States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006). We review such sentences for
“reasonableness,” and must affirm the district court’s determination if it is reasonable. United States
v. Christopher, 415 F.3d 590, 594 (6th Cir. 2005). A sentence is unreasonable if the sentencing
court fails 1to consider the applicable Guideline range or neglects the factors articulated in 18 U.S.C.
§ 3553(a). See United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005).



        1
          Title 18 U.S.C. 3553(a) requires the sentencing court to consider the following factors in determining a
reasonable sentence:
        (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. 05-5241               United States v. Cage                                                                Page 4


        Cage contends that the court applied an “erroneous method” in determining her sentence,
which rendered it unreasonable under Booker. She argues that the district court erred in affording
the Sentencing Guidelines range a presumption of reasonableness when it asserted inter alia that
“there is a presumption in favor of the Guidelines because the Guidelines express the public policy
and intention of Congress . . . .” She suggests that the court failed to integrate the § 3553 statutory
factors properly as required by Booker because it mistakenly focused on what it believed would be
a reasonable sentence within the Guidelines range.
        Cage presents the same argument raised and addressed in United States v. Williams, 436 F.3d
706 (6th Cir. 2006), and her claim is foreclosed. In Williams, we joined with several of our sister
circuits in “articulat[ing] what weight2should be accorded the Guidelines relative to the other
sentencing factors listed in § 3553(a).” Williams, 436 F.3d at 707-08. In that case, “the district
court determined that ‘the advisory nature of the guidelines leads the court to conclude that this
range of sentences . . . is a reasonable range.’ Williams argues from this that the district court
improperly presumed the Guidelines range to be reasonable.” Id. at 708. Cage raises this same
concern, arguing first that the district court erred in beginning with the presumption that the
Guidelines are reasonable, and second, that the court failed to indicate that it was considering any
of the other factors listed in § 3553(a). Here, as did the defendant in Williams, Cage suggests that
because the district court presumed the Guidelines range to be reasonable, she was deprived of the
proper integration of the § 3553(a) statutory factors. Id. at 707. We are not persuaded, and we
reaffirm our position in Williams “crediting sentences properly calculated under the Guidelines with
a rebuttable presumption of reasonableness.” Id. at 708. Williams is controlling, and Cage’s claims
lack merit.
        We pause to make two observations. First, in United States v. Foreman, we recently
suggested in dicta that Williams’ statement regarding the Guidelines’ rebuttable presumption of
reasonableness was “rather unimportant” even though it seems to “imply some sort of elevated
stature to the Guidelines . . . .” United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006).
Foreman observed that “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.” Id. Lest there be some confusion on this point, we note that as Foreman properly
explained, “Williams does not mean that a sentence within the Guidelines is reasonable if there is
no evidence that the district court followed its statutory mandate to ‘impose a sentence sufficient,
but not greater than necessary’ to comply with the purposes of sentencing in section 3553(a)(2).”
Id. Indeed, the district court must still provide sufficient evidence of its consideration of the relevant
§ 3553 factors to allow for a reasonable appellate review. See United States v. Kirby, 418 F.3d 621,
626 (6th Cir. 2005). However, nothing in Foreman should be construed to suggest that a sentencing
court errs by recognizing that this Circuit will accord a presumption of reasonableness to a sentence
within the recommended Guidelines range.
         We think it is important to emphasize here that the district court’s recognition of the standard
that this court will apply on appellate review is not coterminous with the district court’s exercise of
independent judgment in determining a sentence. We decline to conclude that by using the term
“reasonable” or by acknowledging that the appellate court will apply a rebuttable presumption of
reasonableness to a sentence, the district court is itself applying that presumption. As we have
repeatedly said, the presumption is rebuttable, and we may find that it has been rebutted in a case
in which the record fails to reflect that the district court considered the requisite factors in imposing
sentence. We therefore do not share the view expressed in footnote 3 of the dissent that there is


         2
          See, e.g., United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam); United States v. Green,
436 F.3d 449, 457 (4th Cir. 2006); United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005); United States v. Lincoln,
413 F.3d 716 (8th Cir. 2005).
No. 05-5241           United States v. Cage                                                    Page 5


“very little difference between saying that a Guidelines sentence is presumptively reasonable versus
per se reasonable.” A rebuttable presumption is, by definition, subject to rebuttal, while a sentence
that is per se reasonable is not.
        Second, although ancillary to our decision in this case, we are mindful of the ongoing
discussion among the circuit courts since our decision in Williams as to whether Booker accords the
Guidelines a presumption of reasonableness. See, e.g., United States v. Jimenez-Beltre, 440 F.3d
514, 518 (1st Cir. 2006) (en banc) (“[a]lthough making the guidelines ‘presumptive’ or ‘per se
reasonable’ does not make them mandatory, it tends in that direction . . . .”); United States v.
Fernandez, 443 F.3d 19, 27 (2d Cir. 2006) (“declin[ing] to establish any presumption, rebuttable or
otherwise, that a Guidelines sentence is reasonable”); United States v. Kristl, 437 F.3d 1050, 1054
(10th Cir. 2006) (observing that sentences correctly calculated under the Guidelines are “entitled
to a rebuttable presumption of reasonableness on appeal”); United States v. Lewis, 436 F.3d 939, 946
(8th Cir. 2006) (“[A] sentence falling within the applicable guideline range is presumptively
reasonable.”). In particular, we note the recent deliberations of the Ninth Circuit and the Fourth
Circuit in United States v. Zavala, 443 F.3d 1165 (9th Cir. 2006), and United States v. Johnson, 445
F.3d 339 (4th Cir. 2006), respectively.
        In Zavala, the Ninth Circuit discussed the relative weight of the Sentencing Guidelines and
the spectrum of latent meanings lurking in the word “presumption.” Zavala then rejected any
attempt by the district courts to endow the Guidelines with what the court called a “mandatory
rebuttable presumption.” Zavala, 443 F.3d at 1169-70. Zavala emphasized the difference between
the district court’s appropriately using the Guidelines as a “starting point,” and the court’s awarding
“particular weight to the thing presumed,” and determined that “[i]f a district court presumed that
the sentence should be a Guideline range sentence, it would thereby make it much more than
something to be consulted and would give it much heavier weight than § 3553(a) now does.” Id.
at 1169. The Ninth Circuit thus concluded that such additional weight is improper after Booker
because “[n]othing in 18 U.S.C. § 3553 . . . indicates that the Guidelines are to be given any greater
weight than their fellow sentencing factors.” Id. at 1171. Significantly, however, Zavala did not
confront the question of “whether a reviewing court should entertain a presumption that a sentencing
decision which does fall within the Guideline range is reasonable.” Id. at 1168. Moreover, the court
recognized that it had “not yet opined on that question, and will not do so now.” Id at 1169.
       By contrast, we have already answered this question and credited the Guidelines with a
rebuttable presumption of reasonableness. To be sure, our appellate review looks to the
reasonableness of the sentence taken as a whole, while the district court must follow its mandate to
“impose a sentence sufficient, but not greater than necessary” to comply with the purposes of §
3553. Foreman, 436 F.3d at 644. However, unlike the Ninth Circuit, we have granted the
Guidelines a rebuttable presumption of reasonableness in accord with Booker, and although
sentencing courts must demonstrate their consideration of the relevant § 3553 factors in order to
allow for a reasonable appellate review, those courts do not err in recognizing that presumption.
        The Fourth Circuit’s discussion in Johnson bolsters our position. Johnson reiterated the
Fourth Circuit’s conclusion that “a sentence within the proper advisory Guidelines range is
presumptively reasonable,” and then explored three justifications for this. Johnson, 445 F.3d at 341.
First, Guidelines sentences are presumptively reasonable in light of the extensive legislative and
administrative process that birthed them. As Johnson surmises, “[i]t would be an oddity, to say the
least, if a sentence imposed pursuant to this congressionally sanctioned and periodically
superintended process was not presumptively reasonable.” Id. at 342. Second, and we consider this
most persuasive, the Guidelines already incorporate the § 3553(a) factors as “Congress in fact
instructed the [Sentencing] Commission to take these § 3553(a) factors into account when
constructing the Guidelines.” Id. at 343. See 28 U.S.C. §§ 991(b)(1)(A), (b)(2); 994(a)(2), (b)(1),
(g), (m). “[B]y devising a recommended sentencing range for every type of misconduct and every
No. 05-5241           United States v. Cage                                                     Page 6


level of criminal history, the Guidelines as a whole embrace ‘the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar conduct.’”
Id. (quoting 18 U.S.C. § 3553(a)(6)). Indeed, as Johnson elaborates:
       The § 3553(a) factors are built into the Guidelines in other ways as well. The offense
       levels and criminal history categories squarely address “the nature and circumstances
       of the offense and the history and characteristics of the defendant.” 18 U.S.C.A. §
       3553(a)(1). The various adjustments and enhancements bear upon the need for the
       sentence “to reflect the seriousness of the offense . . . and to provide just
       punishment.” Id. § 3553(a)(2)(A). And the elevated criminal history categories for
       repeat offenders and career criminals reflect the congressional intention “to afford
       adequate deterrence to criminal conduct,” id. § 3553(a)(2)(B) and “to protect the
       public from further crimes of the defendant,” id. § 3553(a)(2)(C).
Id. Third, Johnson considered the Guidelines sentences presumptively reasonable because “such
sentences are based on individualized factfinding and this factfinding takes place in a process that
invites defendants to raise objections and requires courts to resolve them.” Id.
        In light of our holding in Williams, and being persuaded that even after Booker “the
Guidelines are not something separate and apart from Congress’s objectives in § 3553(a),” Johnson,
445 F.3d at 343, we hold with regard to Cage that the district court did not err in viewing the
Guidelines as a presumptively reasonable starting point and “considering the Sentencing Guidelines
and the Guideline ranges before the court does anything else.” As we explicitly stated in Williams,
“[s]uch a presumption comports with the Supreme Court’s remedial decision in Booker.” Williams,
436 F.3d at 708. Thus, the district court’s statement that the Guidelines were presumptively
reasonable does not support the claim that the court’s method of sentencing violated Booker or
improperly weighed the Guidelines in relation to the other factors.
        This leads to Cage’s second contention. Cage argues that the district court failed to explicate
its consideration of the statutory factors. This Court has made clear that in reviewing the § 3553
factors, we have “never required the ‘ritual incantation’ of the factors to affirm a sentence.” United
States v. Johnson, 403 F.3d 813, 816 (6th Cir. 2005). As we have explained, “[t]he court need not
recite these 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).
Here, the district court acknowledged that it was proceeding under the post-Booker regime and that
it must consider the advisory Guidelines range as well as the § 3553(a) factors. The court reasoned
that sentencing within the Guidelines range would be reasonable based upon its experience with
post-Booker sentencing and the circumstances of this case, but then acknowledged that it could
depart from the Guidelines if necessary in order to impose a reasonable sentence. The court went
on to review and consider the presentence report, the recommended Guidelines range, and Cage’s
request for a downward departure from the Guidelines in light of her family’s hardship. Ultimately,
the court declined to depart from the Guidelines range after expressly commenting on the
seriousness of Cage’s continuing criminal conduct even after her prior prosecution for similar fraud.
The court stated that after considering all of the circumstances of the offense and the history and
characteristics of the defendant, as well as adequate deterrence of criminal conduct, it had
determined that the Guidelines provided a reasonable sentencing range.
        Thus, here, as in Williams, the district court adequately articulated its reasoning so as to
allow reasonable appellate review, and arrived at a reasonable sentence in keeping with the
mandates of § 3553. A rote recitation of the statutory factors is unnecessary and the court
appropriately acknowledged the statutory factors along with the Guidelines and sentenced Cage
accordingly. United States v. Jones, 445 F.3d 865, 869 (6th Cir. 2006) (“The district court need not
explicitly reference each of the § 3553(a) factors in its sentencing determination.”); see also United
No. 05-5241           United States v. Cage                                                   Page 7


States v. Willis, 2006 WL 1043937 (6th Cir. (Tenn.)) (unpublished) (affirming a district court’s
Guidelines sentence that used the Guidelines as a “starting point” and then discussed the statutory
factors without explicitly referencing them).
        Finally, in reviewing the reasonableness of the court’s sentence, we note that Cage has failed
to identify a single factor that might support her claim that her sentence of 37 months in prison is
unreasonable under the circumstances. Indeed, in requesting a downward departure, Cage has
pointed only to her family’s hardship and the record indicates that the court fully considered the
effect of Cage’s sentence on her family before lamenting that tragic consequences are often born of
criminal behavior. In sum, although the district court’s discussion of the § 3553(a) factors was not
lengthy, it was adequate for an appellate review for reasonableness.
                                          CONCLUSION
       For the foregoing reasons, we AFFIRM the judgment of the district court.
No. 05-5241              United States v. Cage                                                             Page 8


                                             ________________
                                                 DISSENT
                                             ________________
        CLAY, Circuit Judge, dissenting. The majority opinion in this case represents the latest step
in an ongoing push within this Circuit to subvert United States v. Booker, 543 U.S. 220 (2005), and
to make the sentencing Guidelines de facto mandatory. This Court took its first major step in this
direction when it purportedly held in United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006),
that on appeal, this Circuit would now credit sentences “properly calculated under the Guidelines
with a rebuttable presumption of reasonableness.” While the Williams Court erred in the first
instance by holding that a sentence within the Guidelines range is presumptively reasonable on
appeal, the majority has now alarmingly compounded that error by holding that district  courts may
consider a sentence within the Guidelines range to be presumptively reasonable.1 The majority’s
holding in this case directly contravenes Booker, 18 U.S.C. §3553(a), and this Court’s prior
holdings that district courts are to consider all the §3553(a) factors in arriving at a sentence
sufficient to, but not greater than necessary, to comply with the purposes of 18 U.S.C. § 3553(a).

         In excising “the provision [of the Sentencing Guidelines] that require[d] sentencing courts
to impose a sentence within the applicable Guidelines range (in the absence of circumstances that
justify a departure),” Booker, 543 U.S. at 259, the Booker Court left intact § 3553(a), which requires
that district courts “take account of the Guidelines together with other sentencing goals” of
§ 3553(a) in order to arrive at the appropriate sentence for each individual defendant. Id. After
providing the district courts with guidance on how to determine what sentence to impose, the
Supreme Court went on to state that sentencing decisions are appealable regardless of whether the
sentence falls within or outside the applicable Guidelines range; and that the appellate courts are to
review those sentences for “unreasonableness.” Id. at 261. Booker further instructs that the courts
of appeals, in reviewing sentences imposed by the district courts, are to be guided by the same
§ 3553(a) factors that the district courts are required to consider in determining what sentence to
impose on the defendant. Id.
         By making the Sentencing Guidelines advisory rather than mandatory, the Supreme Court
made clear that its purpose was to remedy the constitutional problems created by the mandatory
system, and yet to also “continue to move sentencing in Congress’ preferred direction, helping to
avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize
sentences where necessary.” Id. at 264-65 (citing 28 U.S.C. § 991(b)). In so doing, the Supreme
Court recognized that the system it created would involve greater exercise of discretion by district
courts and a greater range of sentencing than a mandatory Guidelines system. Booker, 543 U.S. at
263. Nevertheless, the Supreme Court concluded that such a system was required in light of
Booker’s holding on the merits. Id. The plain statutory language of what remains of the Sentencing
Reform Act after Booker places the advisory Guidelines range as one factor amongst several that
district courts are to consider in arriving at an appropriate sentence. See 18 U.S.C. § 3553(a).
Nothing in the text of the § 3553(a) elevates the now-advisory Guidelines sentence above other
factors or permits the district court to “presume” that the advisory sentence would be reasonable for
an individual defendant.



        1
           The step the majority takes today would not appear to be embraced by even all members of this Court who
accept the Williams’ rebuttable presumption of reasonableness for Guidelines-range sentences on appeal. See United
States v. Buchanan, 449 F.3d 731, 740 (6th Cir. 2006) (Sutton, J., concurring) (noting that “[r]easonableness is an
appellate standard of review”) (emphasis in original).
No. 05-5241               United States v. Cage                                                                  Page 9


        Instructing district courts that they are allowed to consider a within-Guidelines sentence to
be presumptively reasonable discourages district courts from exercising the discretion which Booker
holds is required, and has the practical effect of making the Guidelines de facto mandatory. First,
a presumption of reasonableness in the sentencing court imposes upon the defendant the undue
burden of having to justify a departure from the Guidelines range. See United States v. Webb, 403
F.3d 373, 385 n.9 (6th Cir. 2005) (“[W]e        also decline to hold that a sentence within a proper
Guidelines range is per-se reasonable2. Such a per-se test is not only inconsistent with the meaning
of ‘reasonableness,’ but is also inconsistent with the Supreme Court’s decision in Booker, as such
a standard would effectively re-institute mandatory adherence to the Guidelines.”). Second, a
presumption of reasonableness on appeal unduly pressures the district court to sentence within the
Guidelines range in order to discourage review and avoid reversal. Third, and most importantly, a
presumption of reasonableness improperly elevates the Guidelines above the other § 3553(a) factors.
        The district court’s job is not to start with a Guidelines sentence and then decide whether a
departure is warranted. While it is true that the Guidelines are the only sentencing factor which
produces a number for the district court’s consideration, this is not, however, the only number before
the district court. All sentences begin and end within the statutory sentencing range for the crime
of conviction. It is therefore the statutory sentencing range which serves as the district court’s point
of departure as the district court tailors a defendant’s sentence in accordance with § 3553(a).
        Even were the Guidelines range a “starting point” within the statutory minimum and
maximum for the crime of conviction, there is a difference between using the Guidelines as a
“starting point,” and considering a Guidelines sentence to be“presumptively reasonable,” as the
Ninth Circuit has already observed. See United States v. Zavala, 443 F.3d 1165, 1169 (9th Cir.
2006). The Zavala Court provides excellent perspective on the issue:
         In this area, were a presumption proper, we suppose it would be a mandatory
         rebuttable presumption. But even that is more than a mere starting point because it
         gives a particular weight to the thing presumed. It would indicate that the Guideline
         range is to be used unless (by some evidentiary standard) a party can prove the
         contrary. That is much more than a mere consult for advice, and the Guidelines are
         to be no more than that. If a district court presumed that the sentence should be a
         Guideline range sentence, it would thereby make it much more than something to be
         consulted and would give it much heavier weight than § 3553(a) now does. That
         leaves it as a factor in the sentencing alchemy . . . Simply put, a presumption at the
         district court would give undue weight to the Guidelines. The dangers averted by
         declaring them to be merely advisory would become recrudescent.
Zavala, 443 F.3d at 1169, 1170 (citations and quotations omitted); see also United States v. Jiménez-
Beltre, 440 F.3d 514, 518 (1st Cir. 2006) (en banc) (reasoning that although making the Guidelines
“presumptive” or “per se reasonable” does not make them mandatory, “it tends in that direction”);
United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006) (“We [] decline to establish any
presumption, rebuttable or otherwise, that a Guidelines sentence is reasonable.”); United States v.
Cooper, 437 F.3d 324, 332 (3d Cir. 2006) (declining to adopt a rule that a sentence within the
Guidelines is per se reasonable because such a finding “would come close to restoring the
mandatory nature of the guidelines excised in Booker”).



         2
          I also question whether the rebuttable presumption language in Williams should be considered to be binding
on this Court given the fact that the Webb Court had already stated that it declined to hold that a sentence within the
Guidelines range is per se reasonable. Although the terminology is different, in reality I see very little real difference
between saying that a Guidelines sentence is presumptively reasonable versus per se reasonable.
No. 05-5241           United States v. Cage                                                    Page 10


       I recognize that the Guidelines represent considerable research and insight into the actual
sentencing practices of the judiciary. I also credit the Guidelines with producing a sentence which
would be reasonable upon appeal given an “average” defendant with the background and offense
circumstances in an average defendant’s position. Yet, an “average” defendant is a mathematical
amalgamation which does not exist in real life, and a “presumption” of reasonableness in the trial
court or on appeal leads courts to overly rely on the rather broad generalizations inherent in the
Guidelines. In sentencing, the district court is not tasked with fashioning a sentence for an average
defendant; the court must determine an appropriate sentence for the individual defendant before it.
        Rather than presuming that a sentence within the Guidelines range is reasonable for an
individual defendant before it, the district court is instead obligated to follow the sentencing
procedure that is provided by Booker and 18 U.S.C. § 3553(a), and should: (1) calculate the
appropriate advisory Guidelines sentencing range; (2) consider the other § 3553(a) factors, including
the nature and characteristics of the defendant, the need for the sentence imposed to reflect the
seriousness of the crime, promote respect for the law, provide just punishment for the offense, afford
adequate deterrence, protect the public from future crimes by the defendant, and to provide the
defendant with needed educational/vocational training, medical care or correctional treatment; and
(3) impose a sentence “sufficient to but not greater than necessary, to comply with the purposes” of
§ 3553(a), and which falls within the statutory minimum and maximum sentence for the crime of
conviction. See Webb, 403 F.3d at 383 (stating that we may find a district court sentence to be
unreasonable if the district judge fails to consider the applicable Guidelines range or neglects to
consider the other § 3553(a) factors); United States v. Jackson, 408 F.3d 301, 304 (6th Cir. 2005)
(“[D]istrict courts are required to consider the applicable Guidelines sentencing range when arriving
at a defendant’s sentence [] but only as one factor of several laid out in § 3553(a).”); United States
v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006) (rejecting the notion that a sentence within the
applicable Guidelines range would be presumptively reasonable absent evidence on the record that
the district court considered the other § 3553(a) factors); see also Fernandez, 443 F.3d at 26 (“[T]he
now-advisory Guidelines are to be considered, together with the other factors set forth in 18 U.S.C.
§ 3553(a), by judges fashioning sentences.”); Cooper, 437 F.3d at 329 (“The record must
demonstrate the trial court gave meaningful consideration to the § 3553(a) factors.”).
         It is also crucially important that the district court articulate on the record its reasons for
imposing a particular sentence. Our review of the sentence imposed by the district court is not
limited to a consideration of the length of the sentence; rather, Booker instructs that in determining
reasonableness, we are also to consider “the factors evaluated and the procedures employed by the
district court in reaching its sentencing determination.” United States v. Morris, 448 F.3d 929, 931
(6th Cir. 2006) (Clay, J., concurring). We may therefore conclude that a sentence is “unreasonable
when the district judge fails to ‘consider’ the applicable Guidelines range or neglects to ‘consider’
the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an
appropriate sentence without such required consideration.” Id. (citing Webb, 403 F.3d at 383);
Jackson, 408 F.3d at 305.
        In the post-Booker world, the district courts enjoy enhanced discretion in fashioning
appropriate sentences. It is, as a consequence, more difficult in this new era to say that any
particular sentence within the statutory range for the crime of conviction would be substantively
unreasonable. Our review for procedural reasonableness therefore takes on new importance. This
Court must be able to determine what methods were employed and which factors were considered
by the sentencing court, and we cannot do so unless “the district court in each case []
communicate[s] clearly its rationale for imposing the specific sentence.” United States v.
Richardson, 437 F.3d 550, 554 (6th Cir. 2006); Jackson, 408 F.3d at 305 (“[P]ursuant to Booker,
we as an appellate court must still have the articulation of the reasons the district court reached the
sentence ultimately imposed, as required by 18 U.S.C. § 3553(c).”); Morris, 448 F.3d at 932 (Clay,
J., concurring) (cautioning that the rebuttable presumption of reasonableness language “does not
No. 05-5241           United States v. Cage                                                     Page 11


relieve the district court of the obligation to consider other relevant statutory factors or sufficiently
articulate its reasoning so as to permit reasonable appellate review”).
         In light of all these considerations, I would find in the present case that Defendant’s sentence
is in fact unreasonable. The majority incorrectly holds that the district court did not violate Booker
in sentencing Defendant, but the record reveals that the district court made significant mistakes in
the method it employed in sentencing Defendant. First of all, the district court utilized an incorrect
standard for determining what sentence to impose on Defendant. The district court, rather than
imposing a sentence that complied with the purposes set forth in § 3553(a), instead repeatedly stated
that it was imposing a sentence within the Guidelines because it considered such a sentence to be
“reasonable.” The district court’s remarks about “reasonableness” reveal that in sentencing
Defendant, the district court misapprehended its role. It is not the district court’s job to assume the
reasonableness of a Guidelines sentence; rather, as previously noted by this Court, “[r]easonableness
is the appellate standard of review in judging whether a district court has accomplished its task.”
Foreman, 436 F.3d at 644 n. 1 (emphasis in the original). Defendant should have been given a
sentence sufficient to, but not greater than that required, to comply with the § 3553(a) factors, not
a sentence that the district court considered to be “reasonable” for ill-defined reasons.
         The district court also erred in stating that it was its obligation under Booker to “consider[]
the sentencing guidelines and the guideline ranges before [he did] anything else,” and to consider
them to be presumptively reasonable. The majority incorrectly holds that the district court did not
err in viewing the Guidelines as a presumptively reasonable starting point. Although the majority
attempts to surreptitiously merge the circumstances of Williams with this case, it must be reiterated
that Williams does not stand for the proposition that a district court may assume a sentence within
the applicable Guidelines range to be presumptively reasonable. Rather, the Williams Court
specifically held that on appeal, this Court may consider a sentence within the Guidelines range to
be presumptively reasonable. It did not apply the “presumptive reasonableness” standard to the
district court, as does the majority here.
        The facts of this case reveal that the district court, operating under an erroneous
reasonableness standard, viewed the Guidelines as presumptively reasonable, and as a consequence,
failed to properly consider the other § 3553(a) factors as required. The district court stated that it
would impose a Guidelines sentence, and was willing to “move away from the Guidelines” only if
it thought departure was necessary to impose a “reasonable” sentence. According to the district
court, if it decided to impose a non-Guidelines sentence, it would do so because the court was
“following the Congressional Mandates of Section 3553.” (J.A. at 22.) This method of calculating
Defendant’s sentence violated Booker in that the district court mistakenly believed that it was
required to start with a Guidelines sentence and could only depart upward or downward if some
other § 3553(a) factor, or combination thereof, compelled a departure. That is not now, nor has it
ever been, this Court’s understanding or treatment of the Guidelines post-Booker. The law of this
Circuit has been quite clear that post-Booker, district courts are required to consider the applicable
Guidelines sentencing range when arriving at a defendant’s sentence, along with the factors set out
in § 3553(a). The district court’s sentencing method in this case improperly elevated the Guidelines
above the § 3553(a) factors, and deprived Defendant of the right to have those factors weighed
alongside the Guidelines.
       As a result of the district court’s application of an erroneous standard and method of
computing Defendant’s sentence, and lack of proper consideration of the § 3553(a) factors, I believe
that we are unable to say that Defendant’s sentence was reasonable. I would therefore vacate
Defendant’s sentence and remand this case back to the district court for a new sentencing hearing.
