               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 06a0201n.06
                           Filed: March 27, 2006

                                          No. 04-2211

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                               )
                                                        )        ON APPEAL FROM THE
       Appellee,                                        )        UNITED STATES DISTRICT
                                                        )        COURT FOR THE WESTERN
v.                                                      )        DISTRICT OF MICHIGAN
                                                        )
JUAN CARLOS CANACA,                                     )                          OPINION
                                                        )
       Defendant-Appellant.                             )



BEFORE:       RYAN and COLE, Circuit Judges, and SARGUS, District Judge*

       R. GUY COLE, JR. Defendant-Appellant Juan Carlos Canaca appeals to this Court to

vacate and remand his sentence imposed prior to the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005). We vacate the district court’s sentence and remand for resentencing.

                                                I.

       In June 2004, Canaca pleaded guilty to being found in the United States after being deported

subsequent to a conviction for an aggravated felony. In an addendum to the presentence report,

Canaca sought to preserve an objection to the constitutionality of the United States Sentencing

Guidelines (“Guidelines”) in light of Blakely v. Washington, 542 U.S. 296 (2004), an issue which

was then before the Supreme Court in United States v. Booker, 543 U.S. 220. Canaca submitted a



       *
          The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 04-2211
United States v. Canaca

memorandum of law supporting his Blakely objection prior to sentencing. Canaca was sentenced

after a hearing before a district judge held on September 28, 2004, where he again preserved his

objection to sentencing under the Guidelines. At sentencing, the district court adopted the facts and

circumstances set forth in the presentence report, calculated a sentencing range of 46 to 57 months

under the Guidelines, and imposed a sentence of 48 months.

       After announcing Canaca’s sentence, the district court continued as follows:

       I understand I have the ability to depart downward in some situations, but I do not
       exercise that discretion. And the sentence without the guideline range being binding,
       subject to departures, would probably be about the same. It would be the same.

       Canaca now appeals his 48-month sentence, arguing that his sentence violates the Sixth

Amendment in light of the Supreme Court’s subsequent decision in Booker.

                                                 II.

       Subsequent to the Supreme Court’s decision in Blakely v. Washington, this Court sitting en

banc recommended that in “the interest of judicial economy, and pending a definitive ruling by the

Supreme Court” the district courts continue sentencing in accordance with the Guidelines but also

“announce at the time of sentencing a sentence pursuant to 18 U.S.C.A. § 3553(a) . . . treating the

Guidelines as advisory only.” United States v. Koch, No. 02-6278, 2004 WL 1870438 (6th Cir. Aug.

13, 2004) (en banc order), formal opinion following at 383 F.3d 436 (en banc), vacated by 125 S.

Ct. 1944 (2005).

       Canaca was sentenced in September 2004, after this Court’s en banc order in Koch but before

the Supreme Court handed down Booker. In Booker, the Supreme Court held the Guidelines to be

advisory, but also provided further instruction as to this Court’s duty upon appellate review. The

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United States v. Canaca

Court noted that “[s]ection 3553(a) remains in effect, and sets forth numerous factors that guide

sentencing,” and that “[t]hose factors in turn will guide appellate courts, as they have in the past, in

determining whether a sentence is unreasonable.” Booker, 543 U.S. at 261. Since Booker, we have

required sentencing judges to “offer some measure of reasoning when imposing sentences under the

advisory-only Guidelines” to enable this court to conduct a meaningful reasonableness review.

United States v. Till, 434 F.3d 880, 887 (6th Cir. 2006).

        We now credit sentences properly calculated under the Guidelines with a rebuttable

presumption of reasonableness. United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006).

However, such a presumption does not relieve a district court of its obligation to explain to the

parties and the reviewing court its reasons for imposing a particular sentence. United States v.

Richardson, 437 F.3d 550, 554 (6th Cir. 2006). Neither does the presumption allow this court “to

abdicate any semblance of meaningful review.” United States v. Foreman,436 F.3d 638, 644 (6th

Cir. 2006). Even when selecting a presumptively reasonable sentence within the Guidelines range,

a district court must “specify[] its reasons for selecting the specific sentence within that range,” and,

if a defendant raises a particular argument in favor of a lower sentence, the judge must “explain[]

the basis for rejecting it.” Richardson, 437 F.3d at 554.

        We agree with the dissent that the district judge is “skilled and experienced,” and that he

applied the then-existing law of this circuit as set forth in Koch and imposed an alternative sentence.

The district court did not, however, have the benefit of Booker or this court’s subsequent case law

setting forth the requirements of reasonableness review. Because we are unable to perform

meaningful reasonableness review of the alternative sentence without any articulation by the district

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United States v. Canaca

court of the reasons for imposing the chosen sentence, we vacate the sentence and remand for

resentencing under Booker.




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United States v. Canaca

       RYAN, Circuit Judge, dissenting.               My brother’s approach to the resolution of this

appeal is rather different than mine and produces a contrary result. Therefore, I must, with respect,

dissent.

       I would affirm the sentence imposed. The district court judge, a skilled and experienced trial

judge, was aware at the time he sentenced the defendant that the United States Sentencing

Guidelines were under attack in the United States Supreme Court and might be held

unconstitutional. So the judge did precisely what this court suggested he do in United States v.

Koch, No. 02-6278, 2004 WL 1870438 (6th Cir. Aug. 13, 2004) (en banc order): he imposed an

alternative sentence based upon the assumption that the Supreme Court would invalidate the

Guidelines.

       I understand I have the ability to depart downward in some situations, but I do not
       exercise that discretion. And the sentence without the guideline range being binding,
       subject to departures, would probably be about the same. It would be the same.

(Emphasis added.)

       The sentence of 48 months’ confinement, imposed on the assumption that the Guidelines

were not “binding” was toward the lower end of the now advisory Guidelines range of 46 to 57

months. Until this court’s decision a short time ago in United States v. Williams, 436 F.3d 706 (6th

Cir. 2006), this court’s case law might have required that Canaca’s sentence be set aside and

resentencing ordered. But Williams has changed the rule in this court. Now, when a sentencing

court, aware that the Guidelines are not mandatory, imposes a sentence within the Guideline range,

the sentence is presumptively reasonable. Nothing in United States v. Foreman, 436 F.3d 638 (6th

Cir. 2006), changes our new rule, or could do so. The court below assumed the Guidelines were not

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United States v. Canaca

“binding” and imposed a sentence within the Guidelines range. Therefore, the sentence is

presumptively reasonable.

       I would affirm the trial court’s sentencing judgment.




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