                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                    File Name: 09a0175p.06

                UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                      No. 08-1345
          v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 TONY BARAHONA-MONTENEGRO,
                                                 -
                                                N
                   Appeal from the United States District Court
              for the Western District of Michigan at Grand Rapids.
             No. 07-00198-001—Robert Holmes Bell, District Judge.
                                   Argued: April 24, 2009
                             Decided and Filed: May 14, 2009
                                                                                           *
    Before: MOORE and McKEAGUE, Circuit Judges; FORESTER, District Judge.

                                    _________________

                                         COUNSEL
ARGUED: Richard D. Stroba, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Grand Rapids, Michigan, for Appellant. Jennifer L. McManus, ASSISTANT UNITED
STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Richard
D. Stroba, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids,
Michigan, for Appellant. Julie Ann Woods, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
                                    _________________

                                         OPINION
                                    _________________

        KAREN NELSON MOORE, Circuit Judge.                      Defendant-Appellant Tony
Barahona-Montenegro pleaded guilty to being an illegal alien in possession of a firearm.



        *
        The Honorable Karl S. Forester, United States District Judge for the Eastern District of
Kentucky, sitting by designation.


                                               1
No. 08-1345         United States v. Barahona-Montenegro                             Page 2


The Presentence Report (“PSR”) concluded that Barahona-Montenegro’s Sentencing
Guidelines range was 37 to 46 months of incarceration based on a total offense level of
17 and a criminal history category of IV. Barahona-Montenegro objected to the PSR,
arguing that his criminal history category had been miscalculated and that he should be
in criminal history category III, making his Guidelines range 30 to 37 months of
incarceration. The district court sentenced Barahona-Montenegro to 48 months of
incarceration. The district court’s oral sentencing opinion did not resolve clearly the
issue of criminal history category. At the sentencing hearing, the district court noted that
this was a serious offense and that Barahona-Montenegro had five children out of
wedlock whom he was not supporting. In a written judgment issued nearly two months
after the sentencing hearing, the district court stated that Barahona-Montenegro’s
criminal history category was III but that the district court had departed upward based
on U.S.S.G. § 4A1.3 because it concluded that this category underrepresented Barahona-
Montenegro’s criminal history.        Barahona-Montenegro appeals his sentence as
procedurally and substantively unreasonable.

        We VACATE Barahona-Montenegro’s sentence as procedurally unreasonable
and REMAND for resentencing.

                                  I. BACKGROUND

        Barahona-Montenegro was born in Honduras and entered the United States in
1990, when he was 15 years old. Barahona-Montenegro lived in the United States until
he was deported in 2005. After his deportation, Barahona-Montenegro returned to the
United States. On June 18, 2007, the Grand Rapids Police Department received a
complaint that a man was waving a gun around. When the police responded to this
complaint, they found a car stuck in the sand and two men, one trying to drive the car
and the other trying to push it out of the sand. The driver identified himself as Vincente
Rubio Garcia, and when the police searched him, they found small bags containing white
powder and spent .22-caliber shell casings in his pockets. The police also searched the
car and found a .22-caliber pistol with a magazine in the backseat. Later, fingerprint
analysis revealed that the driver was Barahona-Montenegro.
No. 08-1345        United States v. Barahona-Montenegro                                  Page 3


       As a result of this incident, Barahona-Montenegro was charged in the United
States District Court for the Western District of Michigan with unlawful reentry after
having been removed following conviction for an aggravated felony in violation of 8
U.S.C. § 1326(b)(2), and with being an illegal alien in possession of a firearm in
violation of 18 U.S.C. § 922(g)(5)(A). On October 11, 2007, Barahona-Montenegro
pleaded guilty to being an illegal alien in possession of a firearm, and the government
dismissed the illegal reentry charge. The PSR indicated a Guidelines range of 37 to 46
months of imprisonment based on a total offense level of 17 and a criminal history
category of IV. Barahona-Montenegro filed a written objection to the calculation of his
criminal history category. The PSR reported that Barahona-Montenegro had been
sentenced to 60 days in jail for a 2003 California burglary conviction and assigned two
criminal history points to this offense. Barahona-Montenegro argued that this sentence
had been suspended and that the conviction should be accorded only one criminal history
point. Further, Barahona-Montenegro asserted that if this conviction were properly
counted, his criminal history category would be III, and his Guidelines range would be
30 to 37 months of incarceration.

       The district court held a sentencing hearing on January 18, 2008, at which
Barahona-Montenegro raised his objection to the PSR’s calculation of his criminal
history category. In ruling on this objection, the district court made the following
remarks:

       If this drops to a criminal history level III, I don’t think a criminal history
       level III adequately represents the criminal history score of this
       gentleman, who incidentally the entire time has been an illegal alien.
       Driving under the influence in Los Angeles, possession of cocaine base
       for sale with a jail sentence, and a series of probation revocations and
       reinstatements, willful cruelty to a child with 90 days in jail and a 48-
       month probation, I don’t think a category III quite represents that,
       together with the fact that we have at this time an outstanding pending
       possession of narcotic controlled substances in Los Angeles County
       Superior Court, case number BA30883, which is about a year old, a little
       over a year old, September 7th of ‘06.
                So if we’re talking about a total criminal history level and we’re
       trying to round it out to be consistent with other criminal history levels,
       whether this is a III or a IV is a no-brainer. It’s a IV. It’s a IV. And so
No. 08-1345         United States v. Barahona-Montenegro                              Page 4


        therefore, I choose not to–or if I do choose to say counsel’s right, it’s
        only a one-point rather than a two-point, I have to say it doesn’t
        adequately represent the criminal history level of this defendant at this
        time, and that I will score it as a IV for purposes of that which I have to
        do here in this matter.

Joint Appendix (“J.A.”) at 45-46 (Sent’g Tr. at 6-7). Before it announced sentence, the
district court stated that “[t]his Court finds an adjusted level, criminal history level [sic]
of 17 and a criminal history level of either III or IV, but I’m calling it a IV for purposes
of my understanding of the overall criminal history pattern that this individual has
amassed while being in the United States.” J.A. at 49 (Sent’g Tr. at 10). The district
court then highlighted the fact that Barahona-Montenegro was an illegal alien, that there
was a firearm involved in the incident, and that Barahona-Montenegro used a false name.
The district court also stated that Barahona-Montenegro has five children, all born out
of wedlock, whom Barahona-Montenegro was not supporting. After observing that this
was a serious crime that must be deterred and that the public must be protected from
Barahona-Montenegro, the district court sentenced Barahona-Montenegro to 48 months
of incarceration.

        On March 6, 2008, nearly two months after the sentencing hearing, the district
court issued a written statement of reasons. This statement reveals that the district court
found that Barahona-Montenegro’s criminal history category was III and that the
appropriate Guidelines range was 30 to 37 months of incarceration, but that the district
court had departed upward because the district court concluded that a criminal history
category of III underrepresented Barahona-Montenegro’s criminal history pursuant to
U.S.S.G. § 4A1.3. Barahona-Montenegro appeals his sentence as procedurally and
substantively unreasonable.

                                      II. ANALYSIS

        We review the district court’s sentence under an abuse-of-discretion standard.
Gall v. United States, — U.S. —, 128 S. Ct. 586, 597 (2007). We first decide whether
the sentence is procedurally reasonable, and then we address its substantive
reasonableness. Id. To determine whether a sentence is procedurally reasonable, we
No. 08-1345          United States v. Barahona-Montenegro                                  Page 5


consider whether the district court “(1) properly calculated the applicable advisory
Guidelines range; (2) considered the other § 3553(a) factors as well as the parties’
arguments for a sentence outside the Guidelines range; and (3) adequately articulated its
reasoning for imposing the particular sentence chosen, including any rejection of the
parties’ arguments for an outside-Guidelines sentence and any decision to deviate from
the advisory Guidelines range.” United States v. Bolds, 511 F.3d 568, 581 (6th Cir.
2007).

         A review of the sentencing transcript reveals that the district court did not
properly calculate the Guidelines range or adequately explain the chosen sentence.
Because Barahona-Montenegro had objected to the criminal history category in the PSR,
his Guidelines range was in dispute at the time of the sentencing hearing. The district
court never clarified its ruling on Barahona-Montenegro’s objection to his criminal
history category, which criminal history category it was applying, or what Guidelines
range the district court was using as a baseline. Instead, the district court provided only
a vague discussion of Barahona-Montenegro’s criminal history category:

         If this drops to a criminal history level III, I don’t think a criminal history
         level III adequately represents the criminal history score of this
         gentleman, who incidentally the entire time has been an illegal alien.
         Driving under the influence in Los Angeles, possession of cocaine base
         for sale with a jail sentence, and a series of probation revocations and
         reinstatements, willful cruelty to a child with 90 days in jail and a 48-
         month probation, I don’t think a category III quite represents that,
         together with the fact that we have at this time an outstanding pending
         possession of narcotic controlled substances in Los Angeles County
         Superior Court, case number BA30883, which is about a year old, a little
         over a year old, September 7th of ‘06.
                  So if we’re talking about a total criminal history level and we’re
         trying to round it out to be consistent with other criminal history levels,
         whether this is a III or a IV is a no-brainer. It’s a IV. It’s a IV. And so
         therefore, I choose not to–or if I do choose to say counsel’s right, it’s
         only a one-point rather than a two-point, I have to say it doesn’t
         adequately represent the criminal history level of this defendant at this
         time, and that I will score it as a IV for purposes of that which I have to
         do here in this matter.
No. 08-1345           United States v. Barahona-Montenegro                             Page 6


Joint Appendix (“J.A.”) at 45-46 (Sent’g Tr. at 6-7). Nor did the district court’s final
mention of the issue clarify the Guidelines calculation: “[t]his Court finds an adjusted
level, criminal history level [sic] of 17 and a criminal history level of either III or IV, but
I’m calling it a IV for purposes of my understanding of the overall criminal history
pattern that this individual has amassed while being in the United States.” J.A. at 49
(Sent’g Tr. at 10).

        Not only does the district court’s oral sentence fail to calculate clearly the
appropriate Guidelines range, but also it does not adequately explain the chosen
sentence. As discussed below, the district court later issued a statement of reasons that
indicated that it sentenced Barahona-Montenegro as though he had a total offense level
of 17 and a criminal history category of III and that the upward departure was based on
the district court’s finding that, pursuant to U.S.S.G. § 4A1.3(a)(1), this criminal history
category was underrepresentative. The Guidelines set out a variety of reasons that a
district court might find a criminal history category underrepresentative, including the
fact that some sentences were not included in the criminal history computation, other
similar misconduct that had not been charged or of which the defendant had been
acquitted, or substantial prior sentences. See U.S.S.G. § 4A1.3(a)(2). In sentencing
Barahona-Montenegro, the district court did not focus on any of these factors. Instead,
the district court recited events and convictions which had already been accounted for
in the calculation of Barahona-Montenegro’s criminal history. The district court
identified one pending charge of drug possession, but did not explain how these factors
led the court to conclude that Barahona-Montenegro’s criminal history category was
underrepresentative.

        Additionally, the district court failed to explain its chosen sentence, i.e., why 48
months of incarceration is the appropriate punishment.              Forty-eight months of
incarceration is two months higher than the Guidelines range that would apply if the
district court treated Barahona-Montenegro as having a total offense level of 17 and a
criminal history category of IV. We have held that “[o]rdinarily when departing from
the Guidelines because a particular criminal history category is inadequate, the court
No. 08-1345         United States v. Barahona-Montenegro                             Page 7


must look to the next higher criminal history category, and must use that range as a
reference before otherwise departing from the Guidelines.” United States v. Thomas, 24
F.3d 829, 834 (6th Cir. 1994); see also United States v. Feinman, 930 F.2d 495, 501 (6th
Cir. 1991) (“When departing from the Guidelines because a particular criminal history
category is inadequate, the district court must look to the next higher criminal history
category as a reference before otherwise departing from the Guidelines.”); United States
v. Kennedy, 893 F.2d 825, 829 (6th Cir. 1990). The district court never accounted for
the imposition of a sentence two months above the Guidelines range that would apply
if the district court increased Barahona-Montenegro’s criminal history category to IV.
Whether this increase was based on criminal history or was a variance based on other
factors, the district court failed to explicate adequately this determination. Additionally,
what little explanation the district court did provide referenced irrelevant factors such
as the fact that Barahona-Montenegro had five children who had been born out of
wedlock.

        The district court’s written statement of reasons that was issued almost two
months later purports to clarify the chosen sentence. According to the statement of
reasons, the district court assigned Barahona-Montenegro an offense level of 17 and a
criminal history category of III, so that his Guidelines range was 30 to 37 months of
incarceration. The statement of reasons indicates that the district court departed upwards
from this Guidelines range because, based on U.S.S.G. § 4A1.3(a)(1), “the defendant’s
criminal history of III under-represented defendant’s contacts with law enforcement.”
J.A. at 72 (Statement of Reasons at 8). However, this statement of reasons fails to cure
the sentencing defects we have noted. Although written sentencing opinions and
statements of reasons are usually issued shortly after the sentencing hearing, in this case
the statement of reasons was not issued until nearly two months after the sentencing
hearing. This delay left Barahona-Montenegro unaware of how his sentence had been
calculated, why he had received a more severe sentence than the Guidelines suggested,
and how he could best address the district court’s reasoning. See United States v.
Garcia-Robles, 562 F.3d 763, 767 (6th Cir. 2009) (highlighting the fact that a defendant
must have the opportunity meaningfully to respond to the district court’s sentencing
No. 08-1345           United States v. Barahona-Montenegro                                      Page 8


rationale regardless of whether the district court issues an oral or written sentencing
opinion).

         In addition to being temporally removed from the sentencing hearing, the
statement of reasons fails to provide the necessary explanation of the chosen sentence.
The district court checked boxes to indicate the mechanics of the sentencing calculation,
but, aside from a single sentence,1 did not explain why the chosen sentence was
appropriate. See United States v. Blackie, 548 F.3d 395, 401 (6th Cir. 2008) (“[T]he
written judgment and commitment order also lacks the requisite level of specificity as
to the reasons for sentencing above the Guideline range. The order simply checked two
boxes to indicate its reasons for sentencing outside the guideline system and left blank
the section of the order for facts justifying the sentence.”).

         The district court’s failure to calculate clearly the Guidelines range and to explain
adequately the chosen sentence are errors that make the sentence procedurally
unreasonable. See Blackie, 548 F.3d at 401-02 (concluding that the district court
committed plain error when “it did not refer to the applicable Guidelines range and failed
to provide its specific reasons for an upward departure or variance at the time of
sentencing or in the written judgment and commitment order”).                         Therefore, we
VACATE Barahona-Montenegro’s sentence as procedurally unreasonable and
REMAND for resentencing.               Because we conclude that Barahona-Montenegro’s
sentence is procedurally unreasonable, we do not now consider whether his sentence is
substantively unreasonable.

                                      III. CONCLUSION

         We VACATE Barahona-Montenegro’s sentence as procedurally unreasonable
and REMAND for resentencing.




         1
          This sentence reads: “The Court found that the defendant’s criminal history of III under-
represented defendant’s contacts with law enforcement.” J.A. 72 (Statement of Reasons at 8). This
sentence provides no insight into why the district court believed that the criminal history category was
underrepresentative or that the chosen sentence of forty-eight months of imprisonment was appropriate.
