The Sixth Circuit has joined the 1st, 3rd, 4th, 7th, 8th, and 10th Circuits in finding that the announcement of alternative sentences by the district court can render Booker error harmless. United States v. Christopher No. 04-3946 (6th Cir. July 28, 2005) (Rogers, C.J., Sutton, C.J., and Forester, D.J.) (opinion available here).
This case was on appeal for the 2nd time. Originally, the district court had sentenced the defendant after adopting the PSR which had recommended a total offense level of 20. The court sentenced the defendant to 33 months’ imprisonment and a three-year period of supervised release. It also ordered him to pay $1,573,062.50 in restitution. The defendant appealed and the 6th Circuit reversed finding that the district court had not made adequately specific findings concerning the amount of loss. United States v. Christopher, No. 02-4004, 91 F.App’x 471, 477 (6th Cir. Mar. 4, 2004).
Upon resentencing, the probation officer revised the PSR and recommended a custody range of 30-37 months, based on a total offense level of 19. The defendant objected to the PSR’s findings on the amount of loss pursuant to Blakely. The district court adopted the PSR’s recommendations as to offense level and amount of loss and sentenced him to 30 months, the low end of the range. The court gave two alternative bases for imposing the sentence due to what the court described as "the sentencing mess that has been created by the Supreme Court." The court gave the defendant one sentence "under the guidelines" and one "under the statute." Thus, the district court imposed a “statutory sentence” identical to the one issued under the Guidelines, “in the event an appellate court finds that the Sentencing Guidelines should not be applicable.” The district court, however, failed to anticipate the Supreme Court's decision in Booker that made the Sentencing Guidelines advisable, rather than throwing them out altogether.
Despite explicitly finding that the district court erred in each of the alternative sentences under Booker, the Sixth Circuit concluded that the alternative sentences by the district court rendered any Booker error harmless, "because of the way in which the district court imposed [the] alternative sentences." The panel found that the court’s alternative sentence "makes clear that either in the absence of the Guidelines or in an advisory Guidelines system, the district court would have imposed on Christopher the same sentence as the mandatory Guidelines required."
The panel then examined whether the sentence was reasonable citing United States v. Jackson, 408 F.3d 301, 304 (6th Cir. 2005) and United States v. Webb, 403 F.3d 373, 382 (6th Cir. 2005). Although the district court wholly failed to mention the factors set forth in 18 U.S.C. § 3553(a), the panel felt that it was "understandable" because the case had been remanded for a re-determination of the amount of loss. Moreover, the panel felt that it was the defendant's burden to show which statutory factors the district court should have considered and how they would have made a difference in the defendant's sentence.
Does this case call into question the reasonableness standard previously set forth in Jackson and Webb? It may, given that this panel appears to put an affirmative duty on the defendant to show, on appeal, how the district court's sentence would have been different, rather than requiring the district court to explicitly state the 18 U.S.C. § 3553(a) factors and the reasons for the sentence that was imposed as set forth in Jackson.