                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 06a0404p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                   X
                              Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                    -
                                                    -
                                                    -
                                                        No. 05-6309
          v.
                                                    ,
                                                     >
 TIMOTHY UNDRAE JOHNSON,                            -
                            Defendant-Appellant. -
                                                   N
                     Appeal from the United States District Court
                   for the Western District of Tennessee at Jackson.
                 No. 04-10101—James D. Todd, Chief District Judge.
                                     Submitted: July 26, 2006
                              Decided and Filed: October 31, 2006
                    Before: MOORE, CLAY, and GRIFFIN, Circuit Judges.
                                       _________________
                                            COUNSEL
ON BRIEF: M. Dianne Smothers, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE
WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant. James W. Powell,
ASSISTANT UNITED STATES ATTORNEY, Jackson, Tennessee, for Appellee.
        CLAY, J., delivered the opinion of the court, in which MOORE, J., joined. GRIFFIN, J. (pp.
7-10), delivered a separate dissenting opinion.
                                       _________________
                                           OPINION
                                       _________________
        CLAY, Circuit Judge. Defendant, Timothy Undrae Johnson, appeals to this Court his
sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Defendant
claims that the sentence imposed by the district court was not “reasonable” in light of United States
v. Booker, 543 U.S. 220 (2005) inasmuch as the district court failed to properly consider the
statutory sentencing factors of 18 U.S.C. § 3553(a).
        For the reasons set forth in this opinion, we VACATE Defendant’s sentence and REMAND
this case to the district court for resentencing.




                                                 1
No. 05-6309                 United States v. Johnson                                                             Page 2


                                                             I.
        Defendant, Timothy Undrae Johnson, was involved in an altercation with another individual
in a Jackson, Tennessee bowling alley. Defendant allegedly threatened to shoot that individual, and
revealed a small handgun that he was carrying in his pocket. Police were called to the scene, and a
subsequent pat-down by the responding officer uncovered a loaded Bryco Arms .25 caliber handgun
hidden on Defendant’s person. Defendant was arrested and taken into custody.
        An investigation by the United States Probation Department (“Probation Department”)
revealed that Defendant was on probation at the time that he committed the offense in this case,
having been previously convicted on February 9, 2004, of felony aggravated assault in the Circuit
Court of Crockett County, Tennessee. Defendant had served thirty days jail time on that conviction,
which was to be followed by three years probation with the Tennessee Department of Corrections.
As a result of the arrest at the bowling alley, Defendant was taken back into the custody of the
Crockett County authorities. A state court hearing was held on July 8, 2005, and an order was issued
by the Circuit Court of Crockett County, Tennessee, revoking Defendant’s probation, and ordering
that Defendant be remanded back into the custody of the Tennessee Department of Corrections to
serve out the remainder of his sentence.
        A presentence investigation report (“PSR”) was prepared by the Probation Department prior
to Defendant’s sentencing hearing before the district court. According to the PSR, Defendant’s total
offense level was 17. Defendant was given 3 criminal history points, which put him in a criminal
history category II, for an advisory sentencing range of 27 to 33 months. At the sentencing hearing,
Defendant’s counsel informed the district court that the Probation Department was likely going to
recommend that the criminal history points be increased to 5 points instead of 3, on the basis of the
state court revocation order. Such an increase would place Defendant in a criminal history category
III, which carries an advisory Guidelines sentencing range beginning at 30, rather than 27 months.
The probation officer who prepared the PSR testified that this amendment would in fact be
appropriate.
        Defendant then claimed before the district court that it was his understanding from his state
court hearing that the state court judge did not intend that he [Defendant] should serve the balance
of his time, but rather that the state court judge intended that Defendant be given 221 days credit on
his sentence, and that the remainder of his sentence be suspended.1 As a result of Defendant’s
“confusion” on the matter, Defendant’s counsel requested that the district court postpone sentencing
in Defendant’s federal case in order to allow counsel time to return to the state court to get
clarification on the revocation order.
        The district court refused, stating that as a policy matter, the federal courts should not put
off sentencing until after the state courts resolve their sentencing issues because to do so would open
the door for every federal defendant to say, “[w]ait a minute, that state conviction’s not right. I need
to go get it fixed before you sentence me.” (J.A. at 39) The district court went on to remark that
it was going to proceed with sentencing since “these guidelines are advisory only now, I’m not going

         1
             Defendant’s confusion is difficult to understand given the explicit language of the revocation order.
         IT IS THEREFORE ORDERED by the Court that the Defendant’s sentence to Corrections
         Management Corporation be revoked and that he will be given 221 days community corrections credit
         and 0 days jail credit on this sentence.
         IT IS FURTHER ORDERED by the Court that the Defendant, TIMOTHY JOHNSON, will be
         designated to Tennessee Department of Correction for the remainder of this sentence.
(J.A. at 11)
No. 05-6309               United States v. Johnson                                                              Page 3


to be bound by these criminal history point determinations nearly as severely as I was previously.”
(J.A. at 40) The district court denied Defendant’s request for additional time, and accepted the
probation officer’s amended calculations. The district court then proceeded to sentence Defendant,
stating the following:
         Mr. Johnson, I’m not required to use these guidelines as the exact sentence, but I’m
         supposed to consider these guidelines. In my judgment, these guidelines do reflect
         an appropriate range of sentences. There’s an overlap between the one that was
         previously calculated, 27 to 33 months, and the new one, 30 to 37 months; so I’m
         going to – Since you were at the top of the criminal history scored under the previous
         calculations and you’re at the middle of the criminal history score under the current
         calculations, I’m going to overlap those and give you a sentence that would be
         appropriate under either range. It seems to me, Mr. Johnson, that a sentence of 30
         months in the Bureau of Prisons is an appropriate sentence, so I’m going to commit
         you to the custody of the Bureau of Prisons for a term of 30 months.
(J.A. at 41) At counsel’s request, the district court also agreed to recommend a long-term drug
treatment program for Defendant.
                                                           II.
        We review the district court’s sentence and exercise of discretion (if any) for
“reasonableness.” United States v. Jones, 399 F.3d 640, 650 (6th Cir. 2005); see also United States
v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). In determining reasonableness, this Court reviews the
“the factors evaluated and the procedures employed by the district court in reaching its sentencing
determination.” Webb, 403 U.S. at 383.
         We hold here that the district court’s sentence is not procedurally reasonable under Booker.
“Section 3553(a) instructs district courts to impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in that section.” United States v. Foreman, 436
F.3d 638, 643 (6th Cir. 2006) (quotations omitted). Although no longer bound by the Guidelines,
district courts are2 still required to consider the applicable Guideline range along with the other
statutory factors. Booker, 543 U.S. at 245-46. “Both district courts imposing sentences in the first
instance as well as appellate courts reviewing sentences on appeal are to be guided by the factors
set forth in 18 U.S.C. § 3553(a).” United States v. Jackson, 408 F.3d 301, 304 (6th Cir. 2005).
Under this new scheme, “district 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).” Id. (internal citations omitted). As such, this Court “may 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.” Webb, 403 F.3d at 383
(internal quotations omitted). “A sentence within the Guidelines carries with it no implication that
the district court considered the 3553(a) factors if it is not clear from the record.” Foreman, 436
F.3d at 644.
        We find persuasive Defendant’s argument that the district court failed to consider the other
§ 3553 factors, and sentenced him solely on the basis of the Guidelines. Despite the fact that the
district court expressly acknowledged that the Guidelines are now advisory, and that the Guidelines

         2
           Section 3553(a) instructs that in determining what sentence to impose, sentencing courts are to consider: the
nature and circumstances of the offense and history of the defendant, along with the need for the sentence imposed to
reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence,
protect the public, and provide the defendant with needed training and medical care. 18 U.S.C. § 3553(a) (2000).
No. 05-6309               United States v. Johnson                                                                    Page 4


are only one factor that should be considered, the district court failed to state on the record that it
was considering any of the other § 3553 factors. In fact, the district court provides no indication at
all of why it felt that Defendant’s sentence was appropriate, other than to state that it was appropriate
under the Guidelines. While it is true that the district court is not required to explicitly go through
each sentencing factor, the district court is required to provide this Court with some evidence on the
record that the § 3553(a) factors were considered. See Webb, 403 F.3d at 385 n.8 (“Post-Booker we
continue to expect district judges to provide a reasoned explanation for their sentencing decisions
in order to facilitate appellate review.”); Jackson, 408 F.3d at 305 (“Although we are fully cognizant
of the fact that district courts are no longer bound by the Guidelines in the manner they once were
. . . we nonetheless find that, pursuant to Booker, we as an appellate court must still have the
articulation of the reasons why the district court reached the sentence ultimately imposed, as
required by 18 U.S.C. § 3553(c).”). Absent such articulation on the record that the § 3553(a) factors
were considered, we are unable to review Defendant’s sentence for reasonableness, and we decline
to find that a sentence within the Guidelines range is reasonable.
                                                           III.
        Rather than remand this case to the district court for resentencing, the dissent would
disregard the Booker violation as harmless error3 and affirm Defendant’s sentence notwithstanding
the district court’s failure to provide “sufficient evidence in the record to affirmatively demonstrate
the court’s consideration of [the § 3553(a) factors].” See United States v. McBride, 434 F.3d 470,
476 n.3 (6th Cir. 2006) (citing United States v. Webb, 403 F.3d 373 (6th Cir. 2005)). Quite simply,
the dissent errs in so concluding.
        As a threshold matter, the government entirely fails to cite relevant case law and makes no
attempt to apply the facts of this case to support its claims of harmless error. The government’s lack
of developed argumentation yields two legally fatal consequences. First, in relying on such a
perfunctory discussion of harmless error, the government has effectively waived the argument on
appeal. Moore v. LaFayette Life Ins. Co., 458 F.3d 416, 448 (6th Cir. 2006). Second, absent
sufficient elucidation, the government cannot meet its burden of proof on harmless error.
       To establish harmless error such that this Court lets stand a defendant’s sentence in spite of
errors at trial or sentencing below, the government must “prove that none of the defendant’s
substantial rights [has] been affected by the error.” United States v. Oliver, 397 F.3d 369, 381 (6th
Cir. 2005) (citing Fed. R. Crim. P. 52(a)); United States v. Barnett, 398 F.3d 516, 530 (6th Cir.
2005). See also Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (noting that the government bears
the burden of proof on harmless error); United States v. Olano, 507 U.S. 725, 734 (1993) (same).
To carry this burden, the government must demonstrate to this Court with certainty that the error at
sentencing did not “cause[] the defendant to receive a more severe sentence.” Oliver, 397 F.3d at
379 (internal citation omitted); United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005)
(“Under the harmless error test, a remand for an error at sentencing is required unless we are certain
that any such error was harmless.”) (emphasis added). In this case, the government wholly failed

         3
          The dissent oscillates between applying harmless error and plain error review. In United States v. Bostic, 371
F.3d 865, 872 (6th Cir. 2004), this Court
         announce[d] a new procedural rule, requiring district courts, after pronouncing the defendant’s
         sentence but before adjourning the sentencing hearing, to ask the parties whether they have any
         objections to the sentence just pronounced that have not previously been raised. If the district court
         fails to provide the parties with this opportunity, they will not have forfeited their objections and thus
         will not be required to demonstrate plain error on appeal.
Accordingly, where – as here – the district court fails to afford the parties an opportunity to object, plain error review
does not apply.
No. 05-6309               United States v. Johnson                                                               Page 5


to carry its burden. The dissent improperly and inexplicably reverses the burden, arguing Defendant
failed in some regard to show that the district court’s procedurally unreasonable sentencing did not
substantially affect his rights. (“On appeal, Johnson has failed to show what, if anything, the district
court should have done at sentencing and     . . . what it would have to do at a resentencing.”) This
burden-shifting is simply not warranted.4
         “[T]his Court does not reach the conclusion that the defendant’s substantial rights have not
been affected until it can discern that the district court properly considered the § 3553 factors.”
United States v. Caswell, 456 F.3d 652, 660 (6th Cir. 2006) (Clay, J. concurring); see also United
States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006). Where the record below provides no
discussion of the factors set forth in § 3553(a), as here, this Court cannot be certain that the district
court considered those factors at all. See Booker, 543 U.S. at 261 (“[Section 3553(a)] factors . . .
will guide appellate courts, as they have in the past, in determining whether a sentence is
unreasonable.”); see also Foreman, 436 F.3d at 644. As the dissent aptly notes, this Court has only
found a defendant’s substantial rights unharmed where the record below indicates with certainty that
the defendant’s sentence would be no different absent the error alleged. See United States v. Alford,
436 F.3d 677, 683 (6th Cir. 2006) (declining to remand on harmless error grounds where the Court
was “convinced that a more lenient sentence would not be imposed”); United States v. Brown, 444
F.3d 519, 522 (6th Cir. 2006) (“certain” of harmless error where district court made discretionary
upward departure from guideline range); Webb, 403 F.3d at 383 (finding that, where the district
court sentenced a defendant pursuant to a plea agreement, within the Guidelines range, and
following consideration of an upward departure, “clear and specific evidence . . . indicates that the
district court would not have sentenced the defendant to a lower sentence” under an advisory
regime). It follows that this Court cannot definitively know whether the district court, upon proper
consideration of the § 3553(a) factors, will impose a different sentence on remand.
        The dissent relies on Caswell to describe the “proper approach to applying harmless- and
plain-error review to reasonableness challenges.” Applying the Caswell approach, it is clear that
this Court cannot excuse the district court’s error in Defendant’s case as harmless. Caswell directs
this Court to “analyze advisory Guideline sentences for reasonableness . . . to determine whether
error was committed.” Caswell, 456 F.3d at 656 n.1. “A sentence is unreasonable if the district court
fails to consider the applicable sentencing range under the Guidelines, or fails to consider the
sentencing factors described in 18 U.S.C. § 3553(a).” Id. at 656 (citing Webb, 403 F.3d at 383)
(internal quotations omitted). In Caswell, this Court found that the district court “sufficiently
consider[ed] the § 3553(a) sentencing factors.” Id. at 657. There, the court acknowledged the
defendant’s “troubled childhood and personal background,” reviewed his criminal history on the
record, took account of the circumstances of the charged offense, and broadly considered the need
for the sentence imposed to deter future crime and protect society. Id. at 657-58. As a result, in
Caswell, the defendant’s sentence was not unreasonable, and the district court committed harmless
error in failing to “reference § 3553(a) by name.” Id. at 658.
        In this case, the district court plainly “fail[ed] to consider the [§ 3553(a)] sentencing factors”
– explicitly or otherwise. See id. As the dissent correctly points out, Defendant’s counsel did not
separately present evidence pertinent to the factors set forth in § 3553(a). However, the PSR does
contain evidence relevant to these § 3553(a) factors. (J.A. at 41 (Defendant expressing remorse and


         4
            As if such unwarranted burden-shifting were not enough, the dissent mischaracterizes this Circuit’s precedent
in United States v. Christopher, 415 F.3d 590 (6th Cir. 2005), citing it as support for the proposition that remand for
resentencing is inappropriate where the defendant fails to show what the district court should have done differently in
the first instance. Although the Christopher court, relying on harmless error doctrine, declined to remand the defendant’s
case for resentencing, it did so because “the district court adequately conveyed that it would impose the same sentence
in absence of mandatory . . . enhancements,” id. at 592, and because the defendant had already received a reduction in
sentence on previous remand. Id. at 592-93.
No. 05-6309                United States v. Johnson                                                                Page 6


acknowledging he “messed up”), J.A. at 48-49 (expressions of regret, cooperation with the
investigation, and no identifiable victims), J.A. at 52 (detailing difficulties of Defendant’s
childhood), J.A. at 53 (indicating substance abuse problems)) Moreover, Defendant’s memorandum
in aid of sentencing requests that the “court . . . consider any fact which will allow the court to
fashion a reasonable sentence” with respect to those factors. (J.A. at 9) The record in Defendant’s
case is notably devoid of any consideration of factors such as Defendant’s personal history, the
nature of his offense, or the need for the sentence to deter Defendant or others from future like
crimes. Defendant’s sentence is consequently unreasonable and, 5under Caswell, the district court’s
failure to sufficiently consider those factors cannot be harmless.
         Finally, the dissent relies upon United States v. Harden, No. 05-4079, 2006 WL 2373259
(6th Cir. Aug. 16, 2006) (unpublished), for the proposition that procedurally unreasonable
sentencing at the district court does not affect a defendant’s substantial rights. (“The import from
these cases is clear: before this court may vacate a sentence for being procedurally unreasonable
and remand for resentencing, we must consider whether the defendant’s substantial rights have been
affected by the district court’s error.”) Such reliance is misplaced. In fact, this Court reviewed the
sentencing decision in Harden for plain error by relying on the fourth prong of the plain error
inquiry to uphold defendant’s sentence, and did not decide whether, under the third prong, the error
affected the defendant’s substantial rights. Id. at *5. In any event, Harden, an unpublished opinion,
fails to provide any precedential guidance.
                                                           IV.
       For the reasons set forth above, we VACATE Defendant’s sentence and REMAND this case
back to the district court for resentencing consistent with this opinion.




         5
            The dissent characterizes remand in this case as a “futile exercise of marching up the sentencing hill again,
only to hand down the same sentence and march back down.” Far from a futile exercise, this Court must remand for
resentencing when the district court makes it only part way up the ‘sentencing hill’ in the first instance and, in doing so,
fails to leave a trail. That is to say: we cannot know whether the view from the top of the hill would in some way have
altered Defendant’s sentence, and absent some articulation on the record, we cannot review the district court’s sentence
for reasonableness as Booker requires this Court to do. See Jackson, 408 F.3d at 305.
No. 05-6309              United States v. Johnson                                                                 Page 7


                                               ________________
                                                   DISSENT
                                               ________________
         GRIFFIN, Circuit Judge, dissenting. I respectfully dissent. In this sentencing appeal,
defendant Timothy Undrae Johnson appeals his thirty-month, within-the-Guidelines sentence
imposed by the district court following his plea of guilty to one count of being a felon-in-possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). Johnson contends, and the majority agrees, that
the district court erred by failing to fully take into account the sentencing factors enumerated in
18 U.S.C. § 3553(a). On appeal, the government argues that Johnson “has failed to develop any
argument to establish how consideration      of any of the sentencing factors . . . would affect the
sentence that was imposed.”1 I agree. Because the error committed by the district court was
harmless and therefore not error requiring reversal, I would affirm.
       The majority concludes correctly that the district court failed to provide the necessary
§ 3553(a) analysis in its sentencing decision. Title 18 U.S.C. § 3553 requires a district court to
consider the nature and circumstances of the offense and the history and characteristics of the
defendant. Id. § 3553(a)(1). In United States v. Jackson, 408 F.3d 301, 305 (6th Cir. 2005), we
explained that district courts in a post-Booker era should explain the basis for their sentencing
determinations. Although, undoubtedly, the review of specific § 3553(a) factors facilitates appellate
review, “this court has never required ‘the ritual incantation’ of the factors to affirm a sentence.”
United States v. Williams, 436 F.3d 706, 709 (6th Cir. 2006) (quoting United States v. Johnson, 403
F.3d 813, 816 (6th Cir. 2005)).
        The problem in this case is that the district court did not explicitly address the § 3553(a)
factors, choosing instead to rely solely on the Guidelines for support   when noting that “a sentence
of 30 months in the Bureau of Prisons is an appropriate sentence.”2 Nonetheless, the fact that there
was error in Johnson’s sentencing does not necessarily mean that he is entitled to resentencing. See
United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005). In the criminal context, mistakes
made by the district court at trial or during sentencing are subject to harmless-error and plain-error
analysis under Federal Rule of Criminal Procedure 52, which provides:
        (a) Harmless Error. Any error, defect, irregularity, or variance that does not affect
        substantial rights must be disregarded.
        (b) Plain Error. A plain error that affects substantial rights may be considered even
        though it was not brought to the court’s attention.
FED. R. CRIM. P. 52; see also United States v. Wilson, 438 F.3d 672, 674-75 (6th Cir. 2006) (“[E]ven
if we were to assume that the district court’s failure to specifically discuss the appellate waiver with
defendant in open court constituted a technical violation . . . the failure constitutes harmless error.”);

        1
         Although the government does not expressly use the words “harmless error,” it makes a harmless error
argument throughout its appellate brief. For example, in its final paragraph of argument on pp 9-10, the government
asserts:
        The defendant makes no argument that the sentence was unreasonable, but rather only that the method
        followed by the district court in arriving at that sentence, somehow did not entail “reasonableness.”
        The defendant has failed to establish either a factual or a legal basis which would constitute error by
        the district court in this sentencing; therefore, this issue is without merit.
        2
          By noting that Johnson was a Zone D offender, the court – arguably – recognized tacitly that prison was the
only “sentence available” to Johnson pursuant to 18 U.S.C. § 3553(a)(3).
No. 05-6309           United States v. Johnson                                                   Page 8


United States v. Copeland, 321 F.3d 582, 603 (6th Cir. 2003) (errors at trial subject to harmless-error
review under Rule 52(a)).
       In Booker, the Supreme Court made clear that the inevitable sentencing challenges that
would follow the Court’s opinion continue to be subject to Federal Rule of Criminal Procedure 52:
       [W]e [do not] believe that every appeal will lead to a new sentencing hearing. That
       is because we expect reviewing courts to apply ordinary prudential doctrines,
       determining, for example, whether the issue was raised below and whether it fails the
       “plain-error” test. It is also because, in cases not involving a Sixth Amendment
       violation, whether resentencing is warranted or whether it will instead be sufficient
       to review a sentence for reasonableness may depend upon application of the
       harmless-error doctrine.
United States v. Booker, 543 U.S. 220, 268 (2005) (opinion of Breyer, J.); see also United States v.
McDaniel, 398 F.3d 540, 546 (6th Cir. 2005) (“Booker instructs us to . . . apply ‘ordinary prudential
doctrines,’ such as plain error and harmless error, in determining the appropriate disposition of
Booker-based appeals.”). The Court has since emphasized the need for appellate courts to perform
harmless-error review to claims of error at trial and during sentencing. See Washington v. Recuenco,
548 U.S. —, 126 S. Ct. 2546, 2551 (2006) (“We have repeatedly recognized that the commission
of a constitutional error at trial alone does not entitle a defendant to automatic reversal. Instead,
‘most constitutional errors can be harmless.’”) (quoting Neder v. United States, 527 U.S. 1, 8
(1999)).
        We have heeded the Supreme Court’s instruction in Booker and have continued to perform
Rule 52 review to sentencing appeals. In our initial sentencing challenges following Booker, we
applied harmless-error and plain-error review to sentences imposed upon the erroneous belief that
the Guidelines are mandatory rather than advisory. We concluded that a defendant’s substantial
rights are not prejudiced where a district court issues an alternative sentence, identical to one based
solely on the presumption that the Guidelines are mandatory. See, e.g., United States v. Christopher,
415 F.3d 590, 593-94 (6th Cir. 2005); Wilson, 438 F.3d at 675. Conducting Rule 52 review, we
have also held that a defendant’s substantial rights are not affected where the district court grants
a substantial upward departure that increases a defendant’s sentence above the Guideline
recommended range, United States v. Brown, 444 F.3d 519, 522 (6th Cir. 2006), where a defendant’s
sentence was based upon a plea agreement entered into voluntarily by the defendant, United States
v. Webb, 403 F.3d 373, 381-82 (6th Cir. 2005), or where the sentencing transcript so demonstrates
that the district court wanted to “send a message” to the defendant that this court is “convinced that
a more lenient sentence would not be imposed on remand given the district court’s actions and
explanation,” United States v. Alford, 436 F.3d 677, 683 (6th Cir. 2006).
       We have continued to apply Rule 52 review where the district court has correctly treated the
Guidelines as advisory. In United States v. Caswell, we explained the proper approach to applying
harmless- and plain-error review to reasonableness challenges:
       When the Guidelines are treated as advisory, there is no presumption of plain error
       or affect on the substantial rights of the parties. Thus, we analyze advisory Guideline
       sentences for reasonableness . . . to determine whether error was committed. It is
       only after this analysis that we can determine whether any error was plain or whether
       it affected the substantial rights of the parties.
456 F.3d 652, 656 n.1 (6th Cir. 2006). We have therefore reviewed for harmless or plain error
claims of substantive unreasonableness, United States v. Gardiner, Nos. 05-1247, 1248, — F.3d —,
2006 WL 2597365, at *10-11 (6th Cir. Sept. 12, 2006), and procedural unreasonableness, United
No. 05-6309                United States v. Johnson                                                                 Page 9


States v. Blackwell, 459 F.3d 739, 773-74 (6th Cir. 2006); United States v. Cruz, 461 F.3d 752, 753
(6th Cir. 2006) (“[A]ny error in describing the [aim of sentencing as imposing a “reasonable”
sentence] was harmless.”).
        In particular, we have performed Rule 52 review where – as here – the district court
inadequately explains the basis of its sentencing determination. See United States v. Harden, No.
05-4079, 2006 WL 2373259 (6th Cir. Aug. 16, 2006) (unpublished). In Harden, the appellant
argued that his sentence was procedurally unreasonable because the district court did not explain
its application of any of the § 3553(a) factors during sentencing. Harden, 2006 WL 2373259 at *3.
We agreed, noting that although the district court “repeatedly stated that it had considered the
§ 3553(a) factors as well as the advisory Guidelines,” it had failed to state its reasoning or explain
which § 3553(a) factors it found relevant and how they related to its sentencing determination. Id.
at *4. We then considered whether the district court’s error required that Harden be resentenced.
Reviewing for plain error, we assumed that the court’s error was plain and that it affected Harden’s
substantial rights, but nonetheless concluded that resentencing was unnecessary because the court’s
error did not “seriously affect[] the fairness, integrity, or public reputation” of the appellant’s
sentencing proceedings and therefore did not constitute plain error. Id. at *5 (quoting Johnson v.
United States, 520 U.S. 461, 466-67 (1997)).3
         The import from these cases is clear: before this court may vacate a sentence for being
procedurally unreasonable and remand for resentencing, we must        consider whether the defendant’s
substantial rights have been affected by the district court’s error.4 An error will require resentencing
only if it affects the defendant’s substantial rights. In my view, the district court’s failure to address
the § 3553(a) factors during Johnson’s sentencing did not affect his substantial rights and was,
therefore, harmless error. As the government notes correctly on appeal, Johnson doesn’t propose
what factor, in particular, the sentencing court should have considered. A review of defense
counsel’s memorandum in aid of sentencing reflects counsel’s concerns regarding the following:
(1) the PSR’s characterization of portions of Johnson’s criminal record, (2) the need for Johnson to
receive long-term substance abuse treatment, and (3) the location where Johnson would5 serve his
sentence (counsel requested that Johnson serve his term at a minimum security facility). Beyond


         3
           The majority argues that my reliance on Harden is misplaced because the Harden court assumed that the
defendant’s substantial rights were prejudiced by the district court’s error. Harden, 2006 WL 2373259 at *5. I do not
cite to Harden for the proposition that a defendant’s substantial rights are unaffected when a district court fails to
adequately explain its consideration of § 3553(a), but rather to illustrate that this court customarily conducts Rule 52
review to claims of procedural unreasonableness. Moreover, unlike here, the appellant in Harden argued to the district
court at the sentencing hearing that a lighter sentence was appropriate in light of the § 3553(a) factors because “the career
offender designation overstated his criminal history,” “because the instant offense was outside the heartland of the
Guidelines,” and “because Harden was a victim of police misconduct during his arrest.” Id. at *4. Thus, there may have
been reason in Harden to assume that the defendant’s substantial rights were prejudiced by the district court’s error. The
record suggests that no such assumption is appropriate here.
         4
          Compare FED. R. CRIM. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial
rights must be disregarded.”), with FED. R. CRIM. P. 52(b) (“A plain error that affects substantial rights may be
considered even though it was not brought to the court’s attention.”). Under either approach, although the burdens of
persuasion differ, the defendant’s substantial rights must nevertheless be affected in order for resentencing to be proper.
See United States v. Olano, 507 U.S. 725, 734-35 (1993).
         5
           None of these concerns suggest that Johnson would receive a shorter sentence on remand. At the sentencing
hearing, Johnson’s counsel argued that the appropriate sentence range, based on Johnson’s criminal history and as
computed by the Guidelines, was twenty-seven to thirty-three months; the government argued that the appropriate range
was thirty to thirty-seven months. The district court imposed a sentence of thirty months, which it deemed appropriate,
in part, because it was permitted under either calculation. On appeal, Johnson does not challenge the district court’s
conclusion that the appropriate range was thirty to thirty-seven months. Johnson, therefore, received the shortest possible
sentence within the Guidelines range.
No. 05-6309              United States v. Johnson                                                           Page 10


that, however, the memorandum declines to highlight for the court any aspect of, for example,
Johnson’s family history, criminal history, or mental stability. Instead, the memorandum merely
states in general terms that “[t]he sentencing court is now required to consider any fact which will
allow the court to fashion a reasonable sentence for the conduct.”
        The sentencing transcript reflects the same problem. Defense counsel chose to focus almost
exclusively on a perceived problem with the criminal history category assigned to Johnson, and at
no point did she direct the district court’s attention to a particular aspect of Johnson’s subjective
situation meriting the court’s consideration and corresponding attention for sentencing purposes.
Indeed, other than remind the court of defense counsel’s request that Johnson receive substance
abuse treatment, counsel declined even to renew arguments regarding the facility where Johnson
would serve his sentence.
        On appeal, Johnson has failed to show what, if anything, the district court should have done
at sentencing and, more importantly, what it would have to do at a resentencing. Faced with similar
circumstances, we have declined to remand for resentencing. See United States v. Christopher, 415
F.3d 590, 594 (6th Cir. 2005) (concluding remand for resentencing inappropriate where case had
been remanded earlier solely to provide more detailed findings concerning the amount of loss caused
by defendant’s crimes and where defendant did not “offer[] any explanation on appeal as to what
factors listed in § 3553(a) the district court should have considered, or how these factors would have
made a difference in the sentence he received.”). Because the record contains no indication that
Johnson’s substantial rights were affected by the district court’s error, I would hold that the
nonconstitutional error committed by the district court was harmless under either a plain-error or
harmless-error analysis. FED. R. CRIM. P. 52; United States v. Olano, 507 U.S. at 735.
       Johnson’s thirty-month sentence is within the Guidelines and, therefore, is afforded a
rebuttable presumption of reasonableness. United States v. Williams, 436 F.3d 706 (6th Cir. 2006).
By not even arguing the particular § 3553(a) considerations that may benefit him at resentencing,
Johnson has failed to rebut the procedural and substantive reasonableness of his sentence. Id. at 708.
See also United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
         Under these circumstances, as appellate judges, we should decline to engage the trial court
in the futile exercise of marching up the sentencing hill again, only to hand down the same sentence
and march back down. United States v. Tucker, 404 U.S. 443, 449-52 (Blackmun, J. dissenting).
         For these reasons, I respectfully dissent. I would affirm.




          Nor would Johnson’s need to receive long-term substance abuse treatment affect the length of Johnson’s
sentence on remand. At the hearing, the district court recommended that Johnson enter a long-term drug treatment
program – provided that Johnson qualified for the program – and ordered Johnson to participate in a drug and alcohol
treatment program upon Johnson’s release from prison. Johnson, therefore, received the medical care that he requested,
and this factor would not result in a shorter sentence for Johnson on remand. See 18 U.S.C. § 3553(a)(2)(D) (directing
courts to consider at sentencing, inter alia, the need to “provide the defendant with needed . . . medical care”).
         Finally, Johnson’s concern about the location where Johnson would serve his sentence was not renewed at the
sentencing hearing, nor does it correlate to a § 3553(a) factor that the district court would consider on remand in
determining the length of an appropriate sentence.
