                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 08a0505n.06
                                Filed: August 19, 2008

                                            No. 07-5686

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                               )
                                                        )
          Plaintiff-Appellee,                           )
                                                        )
v.                                                      )   ON APPEAL FROM THE
                                                        )   UNITED STATES DISTRICT
JOSEPH LEE,                                             )   COURT FOR THE WESTERN
                                                        )   DISTRICT OF TENNESSEE
          Defendant-Appellant.                          )


Before:          KEITH and SUTTON, Circuit Judges; and ACKERMAN, District Judge.*

          DAMON J. KEITH, Circuit Judge. Defendant Joseph Lee appeals the sentence entered

against him on May 31, 2007, by Chief Judge Jon Phipps McCalla of the United States District Court

for the Western District of Tennessee. Defendant argues that his sentence was procedurally

unreasonable because, in calculating his sentence, the district court applied a method that denied him

his right to an individualized sentencing determination. Moreover, Defendant contends that the

district court did not adequately address his request for a downward variance. For the following

reasons, we find Defendant’s claims to be without merit. However, because the district court

calculated Defendant’s sentence based on the incorrect Guidelines range, we REMAND the case for

resentencing.




          *
       The Honorable Harold A. Ackerman, Senior United States District Judge for the District of
New Jersey.
No. 07-5686
United States of America v. Joseph Lee
Page 2

                                I. FACTUAL BACKGROUND

       On March 12, 2007, Defendant pled guilty to passing five counterfeited payroll checks of

$633.42, totaling $3,167.10. The checks were made payable to Defendant, and were drawn from the

account of Gerald Brooks d/b/a/ Future World Learning Center located in Memphis, Tennessee. All

of the checks were cashed on July 20, 2004, at Bank of America branches in various Kroger’s

supermarkets in Tennessee.

       In preparing Defendant’s Presentence Report (PSR), the Probation Office found that

Defendant qualified for an offense level of 6. In calculating this level, the Probation Office

considered an incident that occurred on December 16, 2004, in which Defendant deposited a

counterfeit commercial check in the amount of $2,500.83 into his account at Trustmark Bank.

Shortly after depositing the check, Defendant withdrew $2,200 from his account before the check

cleared and could be discovered as fraudulent. In adding the loss amount from this incident with that

of the instant matter, the Probation Office determined that the total amount of loss for which

Defendant was responsible was $6,301.35. Because Defendant was found responsible for a loss of

more than $5,000, but less than $10,000, the Probation Office added 2 points to Defendant’s PSR

as a “Special Offense characteristic.”1      The PSR subtracted two points for acceptance of

responsibility, however, leaving Defendant with an offense level of 6.



       1
         The Probation Office erred in calculating the total loss. The PSR notes that it found a loss
of $6,301.35 by multiplying six checks written for $633.42 and adding $2,500.83 (loss from related
conduct). The report should have only multiplied $633.42 times 5, as Defendant only wrote 5 checks
for that amount. Nevertheless, this miscalculation would not have prevented the adding of 2 extra
points as a special offense because the total loss would still be more than $5,000, as it would be
$5,667.93
No. 07-5686
United States of America v. Joseph Lee
Page 3

       The PSR also found that Defendant qualified for 30 criminal history points, which placed him

in a criminal history category of VI (thirteen or more criminal history points establishes a criminal

history category of VI). Defendant’s criminal history score was extremely high because he had been

convicted of various crimes throughout his adult life. Based on Defendant’s offense level and

criminal history, the PSR recommended a sentence ranging from 12 to 18 months.

       After the issuance of the PSR, Defendant filed a sentencing memorandum objecting to its

recommendation.     Defendant argued that a downward departure pursuant to § 5K2.23 was

appropriate because Defendant had served a state sentence on a related offense, the December 16th

incident. Defendant claimed that the Sentencing Guidelines (“Guidelines”) called for an adjustment

of a sentence imposed if the defendant served prison time for an offense related to the instant

offense, and that related offense was the basis for an increase in the offense level of the instant

offense. Defendant also noted that he would object to an upward departure on the premise that his

criminal history category does not adequately reflect the seriousness of his past criminal conduct or

the likelihood that he will commit other crimes. Defendant argued that his criminal history reflects

more of a problem with an addiction to alcohol than a problem with following the law, as he

committed many of his past crimes while intoxicated.

       At Defendant’s sentencing hearing, the district court judge began by adjusting the Guidelines

downwards to account for the time Defendant served on the December 16th incident. The judge then

applied a mathematical formula to account for the fact that Defendant had 30 criminal history points.

The judge reasoned that such an adjustment was necessary to get a more accurate sentence because,

in the Guidelines, category VI groups together all criminals with a criminal history score of 13 or
No. 07-5686
United States of America v. Joseph Lee
Page 4

higher. Thus, a defendant with a criminal history category of VI and a criminal history score of 13

could be recommended the same sentence as that suggested for someone with a criminal history

category of VI but a criminal history score of 50. In addressing this problem, the district court judge

said the following:

       Normally, what I do on 30 criminal history points is I try to adjust to see where we
       should be in the guidelines using some logical method. The method that we usually
       use is that I take the points above 16, which in this case would be 14, divide that by
       three, which is the typical point increase after criminal history category II, and that
       would leave me with four, and two points left over. I would then adjust the range
       down, that is increase the range so that we would have gone from the calculated
       range, original calculated range of total offense level of VI, I would simply go down
       from the 15 to 21 months, I would go down one, two, three, four, 27-33 months as
       a way to recognize the fact that the defendant was not atypical, that is a person who
       minimally qualifies for a category VI criminal history, but rather somebody who, if
       the tables were extended, would be much higher. In this case, that’s a cautious
       approach, it just allows us to adjust the range in order to reach a more logical
       calculation under the guidelines. I would then adjust that by two, so I would take 27
       to 33 months, and I would go down two more, that would get from 21 to 27 months
       on the scale, and that’s the way I think is logical in this case. It doesn’t necessarily
       answer all of the questions under 18 U.S.C., Section 3553 regarding recidivism,
       protection of the community, but it does a better job than had I not adjusted the
       range. I think we can still talk about the others. They go more toward where a
       person might be placed in the range or whether someone should be outside the range,
       either above or below, but that’s the calculation I think that makes more sense.

(J.A. 45-47.)

       The sentencing range the judge ultimately found to be appropriate was 21 to 27 months.

After considering the 18 U.S.C. § 3553 factors, the judge sentenced Defendant to 27 months in

prison. Defendant now appeals his sentence.



                                         II. DISCUSSION
No. 07-5686
United States of America v. Joseph Lee
Page 5

                   A. The District Court’s Calculation of Defendant’s Sentence

       Defendant argues on appeal that the district judge’s application of a mathematical formula

to arrive at Defendant’s sentence rendered his sentence procedurally unreasonable in violation of

United States v. Booker, 543 U.S. 220 (2005). In support of his argument, Defendant cites the Sixth

Circuit opinion in United States v. Smith, 474 F.3d 888 (6th Cir. 2007). In Smith, the defendant was

given a sentence higher than the one recommended by the Guidelines because the district judge

believed the suggested sentence did not accurately reflect the seriousness of the defendant’s criminal

history. On appeal, the defendant argued that his sentence was unreasonable because the district

court’s reasoning in sentencing him was based, in part, on qualitative findings concerning his

criminal history. The defendant argued that a more calculated approach should have been taken in

determining his sentence. Specifically, the defendant claimed that the court should have added an

offense level for every three criminal history points in excess of 12 and sentenced him accordingly.

The Court rejected the defendant’s suggestion saying that “[s]uch a mechanistic approach . . . seems

to us to be antithetical to our post-Booker approach to reviewing sentences, which emphasizes

flexibility and discretion of district judges.” Id. at 893. Following the court’s findings in Smith,

Defendant in the instant matter claims that the district court’s method of using a formula to

determine his sentence contradicted the mandate of Booker.

       In United States v. Booker, the Supreme Court rendered the Sentencing Guidelines advisory

for all criminal cases and gave district courts enhanced discretion in the sentencing of criminal

defendants. Booker, 543 U.S. 220, 245 (2005). However, Booker requires that the sentence

imposed by the district court be reasonable. Id. at 264. Our reasonableness review is two-fold,
No. 07-5686
United States of America v. Joseph Lee
Page 6

requiring that a sentence be both procedurally and substantively reasonable. United States v.

Collington, 461 F.3d 805, 808 (2006). A sentence may be procedurally unreasonable if it is marked

by “significant procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence-including an explanation for any deviation from the Guidelines range.” Gall v. United

States, 128 S.Ct. 586, 597 (2007). “[A] sentence may be substantively unreasonable when the

district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to

consider pertinent § 3553(a) factors or gives an unreasonable amount of weight to any pertinent

factor.” United States v. Borho, 485 F.3d 904, 908 (6th Cir. 2007) (citation and quotation marks

omitted). We review the reasonableness of a sentence using the abuse-of-discretion standard of

review. Gall, 128 S.Ct. 586, 594 (2007).

       Here, the district court properly determined Defendant’s sentence. In assessing Defendant’s

sentence, the district court used the Guidelines in an advisory role and considered important

subjective factors. Although the district court also applied a mathematical formula to the Guidelines

to account for Defendant’s extensive criminal history, it viewed the results of its calculations as

advisory and non-binding. This is evident by the district judge’s statements at the sentencing. For

example, shortly after calculating Defendant’s sentence, the district judge said:

       I’m going to go with the calculation that we discussed, I think it makes sense, I think
       it is appropriate in the case, which leaves us with a guideline range of 21 to 27
       months, and that’s just advisory. And I think it’s good that it is advisory. It is a
       useful guideline.
No. 07-5686
United States of America v. Joseph Lee
Page 7

(J.A. 50.) (emphasis added).

       The judge’s statements indicate that he is aware that he is not to give a sentence based purely

on the Guidelines or some mathematical calculation, but that those formulations are to be viewed

as advisory. Later, the judge reiterated his view on the advisory nature of the Guidelines and how

he applied his own calculation in an effort to provide a more individualistic sentence. He stated:

       The guidelines are a comprehensive scheme to look at all the factors available that
       we should be looking at in the sentencing process, and it’s a very important process.
       I think sometimes they’re more helpful than others. In this case, they are helpful. I
       think by adjusting the guidelines we have come up with a range that is more
       appropriate.

(J.A. 60-61.)

       The approach applied by the judge here is different than the one suggested by the defendant

in Smith. Here, the results of the judge’s calculation were to be viewed as a guide, and considered

to be one factor among many in sentencing the defendant.2 Whereas in Smith, the defendant wanted

a sentence based purely on a mathematical formula. Thus, it was not the suggestion of using a

mathematical formula to assist in finding an appropriate sentence that the panel in Smith found

inapposite to federal law, but the request that the sentence be restricted to the results of that

calculation. As the district judge in the instant matter viewed the sentencing range he applied as

advisory, he did not violate the mandate of Booker.



                       B. Defendant’s Request for a Downward Variance



       2
        The district judge discussed in detail how the 18 U.S.C. Section 3553 factors were also
considered in sentencing Defendant. This will be discussed in the following pages.
No. 07-5686
United States of America v. Joseph Lee
Page 8

       Defendant’s second argument is that the district court failed to address his request for a

downward variance in his sentence. Defendant argued at sentencing that he was entitled to a

reduction in his sentence because he had already served 23 months for the relevant conduct in the

instant case, the December 16th incident. He requested the reduction as both a downward departure

under U.S. Sentencing Commission Guidelines Manual §5K2.23, and a downward variance under

18 U.S.C. § 3553(a). Defendant claims that although the district court addressed the motion for

downward departure, it failed to address his request for downward variance. In so doing, Defendant

argues, the court failed to independently evaluate whether the sentence complied with 18 U.S.C. §

3553(a) as required by law. Consequently, Defendant claims, the sentence imposed was procedurally

unreasonable.

       As previously mentioned, once the district court has settled on a sentence that it deems to be

appropriate, it then becomes the duty of the circuit court to review that sentence to ensure its

reasonableness with an eye toward the § 3553(a) factors. United States v. Jackson, 408 F.3d 301,

304 (6th Cir. 2005). While the district court need not explicitly reference each of the § 3553(a)

factors, there must be sufficient evidence in the record to affirmatively demonstrate the court’s

consideration of them. United States v. Simmons, 501 F.3d 620, 625 (6th Cir. 2007). A district

court’s failure to consider the § 3553(a) factors would result in a procedurally unreasonable

sentencing determination, potentially requiring the Circuit to vacate and remand for resentencing.

See United States v. Conatser, 514 F.3d 508, 524 (2008).

       Although the district court did not explicitly address Defendant’s request for a downward

variance (apart from its discussion of the request for a downward variance departure on the same
No. 07-5686
United States of America v. Joseph Lee
Page 9

ground), its exhaustive discussion of the § 3553(a) factors satisfied the procedural reasonableness

requirement imposed by Booker. The district court went through an extensive discussion of the §

3553(a) factors as they relate to Defendant. The court stated:

       Under 18 U.S.C., Section 3553, what we consider is offense conduct itself, and this
       is passing checks that were counterfeit checks at a Kroger.

       Now, the burden on society, as illustrated in the materials that were submitted by the
       officer with Kroger, is really significant. Every person that goes in that grocery store
       pays for the fact that you passed bad checks. It doesn’t matter, it is a regressive tax,
       it’s a tax on people who can least afford it . . . That makes it a serious crime. It is not
       just something that is a small economic crime, it’s a real crime, hurts people.

       The second thing we consider is history and characteristics. There’s no question, and
       your counsel is absolutley right, you have had lots of addiction problems. . . . So we
       have a person who has problems with drugs and alcohol and who haven’t been able
       to solve it over a very long period of time. We also have 30 criminal history points,
       we have already adjusted for that. It is important we keep those in mind, however.
       That’s not like somebody who has 16 or somebody who has 12 or somebody who has
       none, it’s a huge difference. The court should be mindful of that. So we have got a
       problem.

       The next thing we have to consider is what’s the sentence supposed to do. The
       sentence is supposed to do several things, it’s supposed to provide just punishment,
       no more punishment than is necessary. . . . We try to do that. That’s why the
       guidelines are very helpful, but it’s not the only way to assess that.

       The second thing the sentence is supposed to do is the sentence is supposed to deter
       others from committing similar crimes. . . . Certainly, very minor sentences, a
       sentence of time served would have no deterrent value, and the government, I think,
       pointed that out, so we have to have a sentence, we should have a sentence of some
       commensuration.

       The sentence is also supposed to protect the public. It’s a big issue in this case,
       protecting those folks who are least able to afford to buy groceries from Kroger, of
       having to pay an extra two to five cents on a can of baked beans is actually a
       worthwhile goal. We don’t want anybody to have to do that, and I think the only way
       you can do that is locking an individual up for a long time if they’re clearly
       committed to committing that type of crime. So that in and of itself calls for a period
No. 07-5686
United States of America v. Joseph Lee
Page 10

       of incarceration, not necessarily the longest one available, but a period of
       incarceration.

       The next thing that we’re supposed to do is we’re supposed to attempt to make
       available those services that may assist you as you go forward in life, and we can do
       several things in that regard and should. We’re going to provide for mental health
       counseling. . . . There’s some other things we will impose, no financial obligations,
       new ones without approval of the probation officer. . . .We will also provide third
       party risk notification because there’s a protection element there.

       We’re also supposed to – the next thing that we’re supposed to consider on every
       occasion are the guidelines, the guideline range. . . . I think sometimes they’re more
       helpful than others. In this case, they are helpful. I think by adjusting the guidelines
       we have come up with a range that is more appropriate. In this case, we’re looking
       at 21 to 27 months.

       We also need to impose a sentence that will not lead to unwarranted sentencing
       disparity, so that individuals in California or New York or Boston or Miami who
       commit the same type of crime and are in the same circumstances will receive
       approximately the same sentence. I always find that to be an interesting and
       challenging concept because nobody is really ever similarly situated to somebody
       else, but there are similarities that are critical, and I think that in this case, the long
       criminal history, the history of addiction, the fact that during periods of supervision,
       even under the watchful eye of the government, you were unable to conform lead us
       to using those characteristics, so that if someone else were in the same situation; they
       should be receiving a sentence of approximately the sentence that will be imposed
       in this case . . .

(J.A. 56-61.)

       Although the district court did not explicitly discuss the § 3553(a) factors in relation to

Defendant’s request for a variance, this extensive discussion of the § 3553(a) factors served the same

purpose. As such, the sentence was procedurally reasonable.



                         C. The Government’s Request for Resentencing
No. 07-5686
United States of America v. Joseph Lee
Page 11

        The Government argues, and Defendant agrees, that the instant matter should be remanded

for resentencing because the district court inadvertently started at the wrong point on the Guidelines

before adjusting Defendant’s sentencing range. The district court began its starting point at 15 to

21 months, the range for a defendant with an offense level of 7 and a criminal history category of VI.

The Government claims that the district court should have started the sentencing range at 12 to 18

months, the range for a criminal with an offense level of 6 and a criminal history category of VI. The

effect of this mistake, the Government argues, is that the district court determined the proper

sentencing range to be 21 to 27 months, when the Guidelines range should have been 18 to 24

months. The Government now contends that a remand is needed so the district court can clarify

whether it intended to impose a 27 month sentence, notwithstanding that it started its calculation at

the incorrect Guideline range.

        Neither party objected to the misstated Guidelines range at the sentencing hearing. Thus, the

question before us is whether the district court’s mistake constituted plain error, entitling Defendant

to be resentenced. “A ‘plain error’ is an error that is clear or obvious, and if it affects substantial

rights, it may be noticed by an appellate court.” United States v. McIntosh, 484 F.3d 832, 836 (6th

Cir. 2007) (quoting United States v. Barajas-Nunez, 91 F.3d 826, 830 (6th Cir. 1996). “We

generally correct a plain forfeited error that affects substantial rights only if the error seriously affects

the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks

omitted).

        The district court clearly erred in starting its adjustment of Defendant’s sentence at the wrong

sentencing range. At sentencing, the district court discussed adjusting Defendant’s sentence to more
No. 07-5686
United States of America v. Joseph Lee
Page 12

accurately reflect his criminal history points. The court indicated that, given Defendant’s criminal

history category and offense level, it would start its adjustment by beginning at the sentencing range

suggested by the Guidelines and then proceed downward in the Guidelines until it found a sentencing

range it felt was more appropriate. The court stated:

        I would . . . adjust the range down, that is increase the range so that we would have
        gone from the calculated range, original calculated range of total offense level of VI,
        I would simply go down from the 15 to 21 months, I would go down one, two, three,
        four, 27 to 33 months as a way to recognize the fact that the defendant was not
        atypical, that is a person who minimally qualifies for a category VI criminal history,
        but rather somebody who, if the tables were extended, would be much higher.

(J.A. 46.)

        The problem with the court’s calculation, however, is that the “original calculated range” for

Defendant was 12 to 18 months, not 15 to 21 months. The Guidelines state that a defendant with

a criminal history of VI and an offense level of 6 should receive a sentence ranging between 12 and

18 months. As Defendant had a criminal history of VI and an offense level of 6, the 12 to 18 month

range was where the district court should have begun its adjustment. Instead, the judge mistakenly

started his calculation at a sentencing range of 15 to 21 months, the range the Guidelines suggest for

a defendant with a criminal history category of VI and an offense level of 7. Thus, the district court

clearly erred in calculating Defendant’s sentence.

        Moreover, the district court’s error affected Defendant’s substantial rights. Given that the

district court’s starting point was incorrect, it is likely that Defendant’s overall sentence is incorrect

as well. Thus, it is possible that Defendant was sentenced to prison for a longer time period than the

district court had intended. As such an action would clearly affect Defendant’s “substantial right”
No. 07-5686
United States of America v. Joseph Lee
Page 13

to be sentenced correctly to a reasonable sentence, the district court’s plain error should be corrected

on remand. See, e.g., United States v. Story, 503 F.3d 436, 441 (6th Cir. 2007) (remanding case for

resentencing because the district court started at the wrong sentencing range in determining the

defendant’s sentence); United States v. Duckro, 466 F.3d 438, 446 (6th Cir. 2006) (“[W]here a

district court makes a mistake in calculating a guideline range for purposes of determining a sentence

under section 3553(a), we are required to remand for resentencing unless we are certain that any such

error was harmless-i.e., any such error did not affect the district court’s selection of the sentence

imposed.” (internal quotation marks omitted)); United States v. Buchanan, 449 F.3d 731, 738-39 (6th

Cir. 2006) (stating that one of the “procedural requirements of a reasonable sentence” is that the

judge calculate the guidelines sentencing range correctly).



                                        III. CONCLUSION

       For the aforementioned reasons, we VACATE Defendant’s sentence and REMAND for

resentencing. The remand is limited to determining whether the district court intended to sentence

Defendant to 27 months in prison, notwithstanding that it started its calculation on the incorrrect

Guidelines range.
