                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-4001
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
Zachary Lon Zeigler,                    *
aka Zachary T. Zeigler,                 *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 17, 2006
                                Filed: September 18, 2006
                                 ___________

Before BYE, HANSEN, and SMITH, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

      Zachary Zeigler pleaded guilty to five counts of use of another person's Social
Security card in violation of 42 U.S.C. § 408(a)(7)(B). The district court1 sentenced
Zeigler to 24 months' imprisonment on each count to run concurrently, three years of
supervised release, and a $500 special assessment. Zeigler appeals his sentence,
arguing that it is unreasonable. For the reasons set forth below, we affirm.



      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
                                        I. Facts
       In 1995, Zeigler applied for and later received a Social Security number for his
alleged son, Zachary T. Zeigler. Zeigler presented a Wyoming birth certificate with
a birth date of January 21, 1995, as well as a certificate of baptism for the child when
he applied in California. The government issued a Social Security number based on
these fraudulent documents in the name of Zachary T. Zeigler. Zeigler repeatedly used
the Social Security number obtained under this name and birth date in several states
to obtain driver's licenses, apply for work, and open bank accounts. The use of this
false number formed the basis for the instant five counts of conviction in South
Dakota.

       Prior to sentencing, the United States moved for an upward departure based on
the inadequacy of Zeigler's criminal history. Zeigler's criminal history dated back 27
years and included 6 felony convictions, however, the Presentence Investigation
Report ("PSR") listed Zeigler's criminal history as a category I due to the lapse of time
between convictions.2 At sentencing, the district court found that Zeigler's offense
level was four, with a criminal history category I, resulting in a recommended
sentencing range of zero to six months. However, the government requested at least
18 months' incarceration in its upward departure motion. Without explicitly ruling on
the government's upward departure motion, the district court found that Zeigler's
criminal history "completely" understated his criminal conduct.3 Consequently, the


      2
       According to the PSR, between 1978 and 1984, Zeigler was convicted of the
following: forgery, fraudulent obtaining of aid for children, unauthorized use of food
stamps, perjury, battery, misapplication of Indian tribal funds, and impersonation of
an officer or employee of the United States. In 2004, Zeigler was convicted for
disorderly conduct.
      3
       The district court's Statement of Reasons reads as follows:

      The Court imposed a sentence outside the advisory guideline range and
      considered the factors set forth in 18 U.S.C. § 3553(a). The defendant

                                          -2-
district court sentenced Zeigler outside of the advisory Guidelines range to 24 months'
imprisonment on each count to run concurrently, 3 years of supervised release, and
a $500 special assessment.

                                      II. Discussion
       Zeigler argues that his sentence is unreasonable given the totality of the facts
and circumstances of his case. Zeigler points out that a 22-year gap separated his last
conviction4 and his next oldest conviction. Zeigler claims that the sentence imposed
by the district court is four times that recommended by the Guidelines, represents an
upward departure of nine levels, 18 months, or 400%, and that significant disparity
exists between the Guidelines range and the actual sentence imposed. Moreover, the
sentence exceeds the government's recommendation by six months. Additionally,

      had a history of fraudulent conduct and "lying is a way of life" for him.
      In 1984 he was convicted of Misapplication of Indian Tribal Funds in
      Reno, NV, and he served six months custody. The aforementioned
      offense involved his fraudulently collecting travel reimbursements. Later
      in 1984, the defendant was convicted of Impersonation of an Officer or
      Employee of the United States, and he served less than one year in
      custody. Additionally, when the defendant was arrested in Lawrence
      County, SD, in 2004, for a misdemeanor offense, he used the same
      fraudulent Social Security number as the one in the instant offense.

      The Court found the defendant's criminal history category of I
      significantly understated his prior criminal conduct. The Court found a
      sentence outside the advisory guideline range was justified pursuant to
      18 U.S.C. § 3553(a)(1), based upon the nature and circumstances of the
      offense and the history and characteristics of the defendant. The Court
      also found the sentence imposed needed to afford adequate deterrence
      for the criminal conduct pursuant to 18 U.S.C. § 3553(a)(2)(B). Based
      upon the Court's findings, the Court sentenced the defendant to 24
      months custody on each of the five counts, all to run concurrently.
      4
      Zeigler was convicted of disorderly conduct in 2004, which is a class II
misdemeanor under South Dakota law.

                                         -3-
Zeigler asserts that even if the district court placed him in criminal history category
VI, his sentence is still twice the recommended 12 months' imprisonment under that
calculation. Zeigler submits that the district court's sentence treats him differently than
similarly situated defendants contrary to the purpose of the Guidelines. Zeigler thus
urges that the sentence as imposed be found unreasonable and requests that we remand
his case to the district court for resentencing.

      In response, the government points out that the district court considered the
Guidelines as well as the factors outlined in § 3553(a) in fashioning an appropriate
sentence. Specifically, the district court made explicit findings on the inadequacy of
Zeigler's criminal history, which justify sentencing Zeigler to 24 months'
imprisonment on each count to run concurrently.

       We review the district court's interpretation and application of the Guidelines
de novo and its findings of fact for clear error. United States v. Mathijssen, 406 F.3d
496, 498 (8th Cir. 2005). "We will review a district court's decision to depart from the
appropriate guidelines range for abuse of discretion." United States v. Mashek, 406
F.3d 1012, 1017 (8th Cir. 2005). Sentences as a whole are reviewed for
unreasonableness as measured against the factors set forth in 18 U.S.C. § 3553(a). Id.
at 1015–16. "To make [a] reasonableness determination, we ask whether the district
court abused its discretion." United States v. Pizano, 403 F.3d 991 (8th Cir. 2005).
"[A]n abuse of discretion may occur when (1) a court fails to consider a relevant factor
that should have received significant weight; (2) a court gives significant weight to an
improper or irrelevant factor; or (3) a court considers only the appropriate factors but
in weighing those factors commits a 'clear error of judgment.'" United States v. Haack,
403 F.3d 997, 1004 (8th Cir. 2005) (citing Kern v. TXO Prod. Corp., 738 F.2d 968,
970 (8th Cir. 1984)).

      After Booker, "the sentencing court must first determine the appropriate
guidelines sentencing range." Id. at 1002–03.

                                           -4-
      Once the applicable range is determined, the court should then decide if
      a traditional departure is appropriate under Part K and/or § 4A1.3 of the
      Federal Sentencing Guidelines. Those considerations will result in a
      'guidelines sentence.' Once the guidelines sentence is determined, the
      court shall then consider all other factors set forth in § 3553(a) to
      determine whether to impose a sentence under the guidelines or a non-
      guidelines sentence.

Id. at 1003.

       Here, there is no dispute that the district court determined the appropriate
Guidelines sentencing range to be zero to six months' imprisonment. The district court
then considered the § 3553(a) factors to determine whether a "sentence outside the
advisory guideline range" was warranted for Zeigler's understated criminal history.
(Statement of Reasons 3). Thereafter, the district court sentenced Zeigler to 24
months' imprisonment, finding that the defendant's criminal history category I
significantly understated his prior criminal conduct.

       "[A]n upward departure may be warranted when 'reliable information indicates
that the defendant's criminal history category substantially under-represents the
seriousness of the defendant's criminal history or the likelihood that the defendant will
commit other crimes.'" United States v. Hacker, 450 F.3d 808, 811–12 (8th Cir. 2006)
(citing U.S.S.G. § 4A1.3(a)(1)). Although the 24-month sentence imposed was
substantially greater than the advisory Guidelines range found by the district court,
under the circumstances of this case, we find that Zeigler's sentence was reasonable.
United States v. Lyons, 450 F.3d 834, 836 (8th Cir. 2006). The district court
considered the relevant § 3553(a) factors, including the nature and circumstances of
the offense, the history and characteristics of the defendant, and the need to afford
adequate deterrence for the criminal conduct. Specifically, the district court found that
"lying is a way of life" for the defendant, citing his numerous convictions for
fraudulent behavior. In fact, between 1978 and 1984, Zeigler was convicted of the


                                          -5-
following: forgery, fraudulent obtaining of aid for children, unauthorized use of food
stamps, perjury, battery, misapplication of Indian tribal funds, and impersonation of
an officer or employee of the United States. Further, the district court noted that when
the defendant was arrested in Lawrence County, South Dakota, in 2004, for a
misdemeanor offense, he used the same fraudulent Social Security number as the one
in the instant offense. "These are appropriate factors to consider in deciding whether
to vary from the guideline range, and the court did not neglect factors that should have
been given significant weight." Id. Because we find that the district court's upward
variance was supported by the facts and circumstances surrounding this case, we
conclude that Zeigler's sentence is reasonable.

        We note that it is unclear whether the district court imposed an upward
departure or an upward variance. The district court, in the sentencing hearing, stated
that the 24-month sentence "constitutes an upward departure from the recommended
guideline range." Sent. Tr. 26. However, the district court did not engage in a
traditional departure analysis as contemplated by Haack. "Although the district court
erred, the error was harmless." United States v. Sitting Bear, 436 F.3d 929, 935 (8th
Cir. 2006) (holding that the district court's failure to consider an upward departure
under the Haack analysis was harmless error). Zeigler "failed to establish that his
ultimate sentence is unreasonable, i.e., that the district court abused its discretion . .
. ." Id. Moreover, the considerations made by the district court "could have justified
a traditional upward departure under the guidelines, see USSG § 4A1.3(a) . . . ."
Lyons, 450 F.3d at 837. Accordingly, we affirm the judgment of the district court.

                                  III. Conclusion
      For the reasons stated, we affirm Zeigler's sentence.




                                           -6-
HANSEN, Circuit Judge, concurring in the judgment.

      I concur in the judgment of the court because the district court's failure to rule
on the Government's departure motion was harmless error, and I agree that Zeigler's
ultimate 24-month sentence is reasonable given the nature and circumstances of his
offenses and Zeigler's history and characteristics as discussed by the court, supra at
6. I write separately to clarify the difference between departures from an otherwise
applicable Guidelines range (in order to arrive at a correctly calculated advisory
Guidelines sentencing range) and the imposition of a post-Booker non-Guidelines
sentence. I also write to reinforce the district court's obligation to rule on departure
motions in its quest for an accurate advisory Guidelines sentence.

        The court's opinion properly quotes the three-step analysis for reviewing a
district court sentence as set out in United States v. Haack, 403 F.3d 997, 1003 (8th
Cir.), cert. denied, 126 S. Ct. 276 (2005). (Supra at 4-5.) In performing its analysis,
however, I respectfully conclude that it conflates the difference between our review
of a district court's application of a departure under the Guidelines and our review of
the reasonableness of its ultimate sentence. Without first discussing whether the
district court properly calculated an advisory Guidelines sentence (which includes the
proper application of departures at step two), the court's opinion jumps right to the
analysis of whether the ultimate sentence was reasonable (step three). It further fails
to recognize the differences between departures and non-Guidelines sentences by
relying on United States v. Hacker, 450 F.3d 808 (8th Cir. 2006), a departure case, to
conclude that Zeigler's non-Guidelines sentence was reasonable under 18 U.S.C.
§ 3553(a). (Supra at 5.) When the court does address the departure issue, it again
conflates the separate inquiries by following its conclusion that the district court's
failure to address the Government's request for a departure was harmless error with
a statement that Zeigler failed to establish that his ultimate sentence was unreasonable.
(Id. at 6.)



                                          -7-
       As we have explained many times since Booker, the district court must
determine a "Guidelines sentence" before applying the § 3553(a) factors to arrive at
a final sentence. The Guidelines sentence includes a calculation of the appropriate
advisory Guidelines range (step one), as well as a determination of whether any
departures apply (step two). Once the district court determines the advisory
Guidelines sentencing range (as modified by any departure determination it may
make), it then considers the § 3553(a) factors in deciding whether to sentence the
defendant within the identified advisory Guidelines range or to a non-Guidelines
sentence (step three). Haack, 403 F.3d at 1003; see also United States v. Ture, 450
F.3d 352, 356 (8th Cir. 2006) (applying Haack methodology); United States v. Sitting
Bear, 436 F.3d 929, 934-35 (8th Cir. 2006) (same); United States v. Denton, 434 F.3d
1104, 1114 (8th Cir. 2006) (same).

       Generally, if the district court errs in applying the Guidelines at step one or fails
to consider a requested departure at step two, we cannot conduct a reasonableness
review because the district court's critical starting point, a correctly determined
advisory Guidelines range, may be flawed. See United States v. Smith, 450 F.3d 856,
862 (8th Cir. 2006) (remanding for resentencing where the district court failed to rule
on the Government's request for an obstruction of justice enhancement); United States
v. Mashek, 406 F.3d 1012, 1015 (8th Cir. 2005) ("The duty to remand all sentences
imposed as a result of an incorrect application of the guidelines exists independently
of whether we would find the resulting sentence reasonable under the standard of
review announced in Booker."). However, we have continued to apply prudential
doctrines, including harmless error review, to a district court's failure to properly
apply the Guidelines, including departures. Sitting Bear, 436 F.3d at 935; Mashek,
406 F.3d at 1017. In Mashek, the district court's failure to properly apply a downward
adjustment was not harmless to the defendant's appeal of her sentence. On the other
hand, the district court's failure to consider an upward departure in Sitting Bear was
harmless as to the defendant, who was "'deprived merely of the opportunity to receive



                                            -8-
an upward departure and, perhaps, a longer sentence.'" Sitting Bear, 436 F.3d at 935
(quoting United States v. Long Soldier, 431 F.3d 1120, 1122 (8th Cir. 2005)).

       The district court's failure to rule on the Government's motion for an upward
departure in this case is similar to the failure in Sitting Bear and was harmless to
Zeigler, the appellant here. Had the district court granted the Government's motion,
our reasonableness review would have involved comparing the imposed 24-month
sentence to a higher advisory Guidelines range than the 0 to 6-month range arrived at
by the district court without ruling on the departure motion, a much more difficult task
for Zeigler. See United States v. Gall, 446 F.3d 884, 889 (8th Cir. 2006) ("How
compelling that justification [for a non-Guidelines sentence] must be is proportional
to the extent of the difference between the advisory range and the sentence imposed."
(internal marks omitted)).

       It is my view that we must be careful not to commingle the review of a district
court's failure to grant a departure with the § 3553(a) reasonableness review. Because
an ultimate sentence is reasonable does not, in and of itself, make the failure to rule
on a departure motion harmless. Departures are based on specific sections of Chapter
5, Part K of the U.S. Sentencing Guidelines (USSG) Manual and USSG § 4A1.3.
Reasonableness of the ultimate sentence is based on the statutory elements contained
in § 3553(a). While the two may sometimes overlap, circuit courts, as well as district
courts, would do well not to make post-Booker sentencing any more confusing than
necessary by conflating the two distinct analyses. See Nancy J. King, Reasonableness
Review After Booker, 43 Houston L. Rev. 325, 327 (2006) ("[R]ather than skipping
over allegedly faulty assumptions or applications and heading straight to the
reasonableness of the sentence imposed, appellate courts must first sort out the
probability that any error the judge made in calculating the guidelines range and
permissible departures affected the sentence that was selected.").




                                          -9-
      Because the error was harmless, and the 24-month non-Guidelines sentence is
more than reasonable, I concur in the judgment of the court.

BYE, Circuit Judge, concurring.

       Because I believe we should give "deference to the broad discretion visited
upon sentencing courts under the now-advisory guideline system," United States v.
McDonald, __ F.3d __, No. 05-1617, 2006 WL 2528580, at *7 (8th Cir. Sept. 5, 2006)
(Bye, J., dissenting), I concur in affirming Zachary Zeigler's sentence. I feel obliged
to write separately, however, to reiterate a point I made in McDonald about our court's
tendency to affirm sentences above the advisory guideline range and to reverse
sentences imposed below the guideline range. See id. at *10 (listing the upward
departures which this court has affirmed as well as the downward departures it has
reversed).

       In upward departure cases, we have focused in part upon the district court's lack
of an extended discussion of the § 3553(a) factors as a justification for reversing and
remanding a case to the district court. See, e.g., United States v. Myers, 439 F.3d 415,
419 (8th Cir. 2006) (remanding "for imposition of sentence following more explicit
and thorough consideration of all factors enumerated in section 3553(a)" where
district court did not do so in the first instance). In this case, the district court only
perfunctorily indicated it had "considered" the § 3553(a) factors. If we pretend, for
a moment, this case were one in which the guidelines called for a sentence of twenty-
four months at the low end of the advisory range, and the district court had departed
downward 400% to six months, with the same sparse comments about consideration
of the § 3553(a) factors, I seriously doubt the district court's decision would have
survived our appellate review.

       Thus, although I concur in the judgment because I believe the sentence imposed
by the able district court judge is reasonable, I once again call for this court to take a

                                          -10-
critical look at the disparity in our treatment of upward and downward departure
cases.
                        ______________________________




                                     -11-
