United States v. McBride

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0018p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 04-4347
v.
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JAMES THOMAS MCBRIDE, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 02-00060—George C. Smith, District Judge.
Argued: December 6, 2005
Decided and Filed: January 17, 2006
Before: MARTIN, COLE, and GILMAN, Circuit Judges.
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COUNSEL
ARGUED: Steven S. Nolder, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for
Appellant. Daniel Allen Brown, UNITED STATES ATTORNEY, Columbus, Ohio, for Appellee.
ON BRIEF: Steven S. Nolder, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for
Appellant. Daniel Allen Brown, UNITED STATES ATTORNEY, Columbus, Ohio, for Appellee.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. Defendant-Appellant James T. McBride is before
us for the second time. In his first appeal, McBride appealed his conviction and sentence for
presenting false claims to the Internal Revenue Service, obstruction of justice, and bankruptcy fraud.
We reversed his conviction on one count, but affirmed the remaining convictions. We also vacated
McBride’s sentence and remanded his case for resentencing so that the district court could determine
whether, under the relevant application note and provision of the United States Sentencing
Guidelines (“Guidelines”), a downward departure may be warranted because of the possibility that
the court’s loss determination overstates the severity of the offense. At resentencing, the district
court announced two identical sentences: one under the Guidelines, and one that treated the
Guidelines as advisory. McBride appeals his sentence, arguing that the district court violated his
Sixth Amendment rights in light of United States v. Booker, -- U.S. --, 125 S.Ct. 738 (2005), and
that the alternative sentence is unreasonable. For the reasons that follow, we AFFIRM the sentence
imposed by the district court.

1
No. 04-4347 United States v. McBride Page 2

I.
Defendant James T. McBride’s girlfriend, Katina Kefalos, was convicted by a jury of
evading federal income taxes in proceedings before District Judge Algenon L. Marbley. See United
States v. McBride, 362 F.3d 360, 363 (6th Cir. 2004). Also a tax protestor, McBride sent a check
for $12,990.67 to IRS agent Margarent Nypaver during the course of the trial, in purported
satisfaction of Kefalos’s tax obligations. The check was drawn from an account he had closed one
year earlier. McBride then submitted checks from the same closed account to the Franklin County
Treasurer’s Office, purportedly to pay the real estate taxes for the first half of 2001 on the residences
of Judge Marbley, Kefalos’s attorneys David Axelrod and Terry Sherman, and Nypaver, and
immediately received statements from the Treasurer’s Office confirming that he had paid these real
estate taxes. McBride presented these statements as evidence of his creditor status when he filed
involuntary bankruptcy petitions against Judge Marbley, Axelrod, Sherman, and Nypaver. He paid
the $200 filing fee for each involuntary bankruptcy petition with dishonored checks drawn on the
closed account.
McBride was indicted by a federal grand jury on six counts: presenting a false claim against
the government in violation of 18 U.S.C. § 287, obstruction of justice in violation of 18 U.S.C.
§ 1503, obstructing the due administration of the internal revenue laws in violation of 26 U.S.C.
§ 7212(a), and three counts of bankruptcy fraud in violation of 18 U.S.C. § 157. A jury convicted
McBride of all six counts on May 23, 2002. The district court thereafter determined that McBride
should be sentenced under offense level 22, Criminal History Category IV. The court then
sentenced McBride to 78 months of imprisonment on Count 2; 60 months on Counts 1, 4, 5, and 6;
and 36 months on Count 3, all to be served concurrently. One of the factors in determining
McBride’s sentence was the amount of the intended loss of the aforementioned victims. The
presentence report indicated that the intended loss of McBride’s actions, including the bad checks
and the total value of the residences of Judge Marbley, Axelrod, Sherman, and Nypaver, was
$1,139,760.67, which required an increase in the base offense level of 16. Out of an abundance of
caution, the district court estimated the value of the intended loss at $970,865.17, thus increasing
McBride’s offense level by only 14. The actual loss was limited to $800, which was the sum of the
checks McBride wrote to the bankruptcy court to satisfy the $200 filing fee for each of the four
involuntary bankruptcy petitions.
Although this Court affirmed McBride’s conviction with regards to Counts 2-6, it reversed
his conviction for Count 1, the conviction for presenting a false claim to the government.
Furthermore, this Court vacated McBride’s sentence, and remanded his case to the district court for
resentencing because of the disparity between the intended loss and the actual loss. Based on the
sentencing transcript, this Court determined that the district court believed that it could not consider
the “economic reality principle,” which allows for downward departures when the amount of an
intended loss seriously overstates the severity of the offense. This Court determined that the district
court’s belief that the disparity between the actual and intended loss was not grounds for a
downward departure was plain error, and remanded to the district court for resentencing.
A resentencing hearing was conducted in October, 2004. The Government prepared a
sentencing memorandum, to which McBride objected based on Blakely v. Washington, 542 U.S. 296
(2004). The district court found that based on his offense level and his criminal history category,
the applicable guideline range was 77 to 96 months on Count 2, 36 months on Count 3, and 60
months on Counts 4-6. Following the Sentencing Guidelines, the district court announced a
sentence of 78 months: 78 months for Count 2, 36 months for Count 3, and 60 months for Counts
4-6, to run concurrently. Pursuant to this Court’s instructions after McBride’s initial appeal, the
district court also explicitly considered and rejected granting a downward departure based on the
economic reality principle. Additionally, the district court announced a sentence pursuant to 18
U.S.C. § 3553(a) that treated the Guidelines as advisory, which was identical to the sentence
No. 04-4347 United States v. McBride Page 3

announced under the Guidelines. The district court entered its order sentencing McBride to 78
months on October 18, 2004 and McBride timely appealed.
II.
McBride argues that in applying the Guidelines, the district court violated his Sixth
Amendment rights. He argues that the district court unconstitutionally made factual findings to
enhance McBride’s sentence under the Guidelines. McBride objected to his sentence prior to
resentencing, based on the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004).
When a defendant preserves a potential Blakely error, this Court reviews for harmless error. United
States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005).
Although the court did make factual findings of the kind prohibited by United States v.
Booker, -- U.S. --, 125 S.Ct. 738 (2005), the district court also gave McBride an alternative sentence
in anticipation of Booker. This Court has held that when a district court articulates an identical
alternative sentence in addition to a sentence under the guidelines, the harmlessness of the Booker
error is established. See United States v. Christopher, 415 F.3d 590, 593 (6th Cir. 2005); United
States v. Bailey, No. 04-6181, 2005 WL 2739083, at *2 (6th Cir. 2005); United v. Strbac, No. 04-
4158, 129 Fed. Appx. 235, 257 (6th Cir. 2005). Because the district court articulated an identical
alternative sentence, the Booker error is harmless.
III.
Even though a Booker violation is rendered harmless by a district court’s articulation of an
identical alternate sentence, this Court must still determine if that alternate sentence is reasonable.
Booker, 125 S.Ct. at 766.
McBride argues that his sentence is unreasonable because the district court did not properly
consider the sentencing factors articulated in 18 U.S.C. § 3353(a). Section 3553(a) sets forth the
factors a judge must consider in sentencing a defendant. McBride argues that the district court’s
sentence is unreasonable because the district court considered some of the factors, referred to others,
and simply ignored the remaining ones. McBride further argues that his sentence is unreasonable
because the district court did not reasonably consider the economic reality principle.
This Court has held that although a sentence should reflect the considerations listed in
§ 3553(a), “there is no requirement that the district court engage in a ritualistic incantation of the
§ 3553(a) factors it considers.” Chandler, 419 F.3d at 488 (quoting United States v. Washington,
147 F.3d 490, 491-92 (6th Cir. 1998)) (internal citations omitted). However, the district court’s
opinion should be sufficiently detailed to reflect the considerations listed in § 3553(a). Id.
Before turning to the facts of this case, we pause to comment on the state of the law since
Booker. Achieving agreement between the circuit courts and within each circuit on post-Booker
issues has, unfortunately, been like trying to herd bullfrogs into a wheelbarrow. The courts have
particularly struggled to — and often failed at — properly applying the remedial portion of Booker
along with the remedy. One murky area is what to do about the pre-Booker concept of “departures”
under the Guidelines now that the Guidelines are merely advisory. This Circuit is not exempt from
causing confusion in this area. One particular source of that confusion is the Court’s recent opinion
in United States v. Puckett, 422 F.3d 340 (6th Cir. 2005); see also United States v. Melendez-Torres,
-- F.3d -- (1st Cir. 2005). Therefore, we take this opportunity to clarify the scope of our review of
sentences in light of the potential ambiguities resultant from Puckett.
To start, we address what Puckett does and does not stand for. Our reading of Puckett is that
the district court denied a motion for a Guidelines departure provided for under Chapter 5 of the
Sentencing Guidelines. The Court then framed the question as whether we may review “the district
No. 04-4347 United States v. McBride Page 4

court’s decision to deny a downward departure” under Chapter 5 of the Guidelines. Id. at 344.
Reciting our pre-Booker holdings, specifically United States v. Stewart, 306 F.3d 295 (6th Cir.
2002), the Court in Puckett held that the principle that “refusals to grant a downward departure
[under Chapter 5] are unreviewable,” Puckett, 422 F.3d at 345, survived Booker and we must
continue to abide by it. Thus, according to that decision, “we shall not review decisions of a district
court not to downward depart [under Chapter 5] unless the record reflects that the district court was
not aware of or did not understand its discretion to make such a departure.” Id. (quoting Stewart,
306 F.3d at 329). Puckett, despite its broad language, however, deals with only a small portion of
our review of a defendant’s sentence. It does not govern or alter our ability to review the overall
reasonableness of sentences.1
In Puckett, after concluding that it did not have the authority to review the district court’s
decision not to depart downward, the Court affirmed the defendant’s sentence. This was apparently
because, in the panel majority’s opinion, Puckett did not correctly argue for reasonableness review.
Instead, the majority found that Puckett “argues for review of denials of downward departures, but
he does not advocate the reasonableness review suggested by Booker.” Id. at 345. Instead of
arguing for reasonableness review, Puckett argued that we should “apply a clearly erroneous
standard to the denial of a downward departure” under Chapter 5K. Id. Based on Stewart, the Court
rejected Puckett’s argument. The dissent, however, would have remanded for resentencing. The
point of contention between the majority and dissent over whether resentencing was appropriate in
this case was over whether Puckett properly argued for reasonableness review and whether raising
the issue in a reply brief was sufficient.2
The dissent in Puckett also noted that — absent the dispute over whether the issue was
properly raised — nothing “preclude[s] reasonableness review of aspects of the sentencing
determination other than whether a departure is permitted (and to the extent to which a departure is
permitted) under the provisions of USSG Chapter 5.” Id. at 346 (Rogers, J., dissenting) (citing
United States v. Justin Jones, 417 F.3d 547, 551 n.3 (6th Cir. 2005)). This was not disputed by the
majority.
In light of the changing landscape of our review and approach post-Booker, Puckett in reality
precludes our review of only a small portion of the overall sentencing determination. Before
Booker, we reviewed the district court’s sentence to determine whether it properly calculated and
applied the Guidelines. Now when a district court imposes and we review a sentence for
reasonableness, the focal point is on 18 U.S.C. § 3553(a).3 In section 3553(a), there are numerous

1
Instead, Puckett addresses our review of the Guidelines calculation, which under Booker, and as discussed
infra, is both advisory and merely one factor to be considered in the context of section 3553(a).
2
The dissent wrote: “Generally, review of an issue mentioned for the first time in a reply brief is precluded.
In light of the intervening change in law, requesting reasonableness review in the reply brief should be sufficient, where,
in this case, the original briefs were filed before the Supreme Court decided Booker.” Puckett, 422 F.3d at 346 (Rogers,
J., dissenting). The dissent cited this Court’s earlier decision in United States v. Webb, 403 F.3d 373, 380 n.2 (6th Cir.
2005), this Court’s first decision discussing reasonableness after Booker, where the Court held that raising the issue in
a reply brief is sufficient. To the extent that Puckett conflicts with Webb in this respect, we note that Webb was filed
first and is binding on subsequent panels.
3
While the district court need not explicitly reference each of the section 3553(a) factors, there must still be
sufficient evidence in the record to affirmatively demonstrate the court’s consideration of them. United States v. Webb,
403 F.3d 373 (6th Cir. 2005). In Webb we held that there are both substantive and procedural components to our
reasonableness review. Webb, 403 F.3d at 383-85. A district court’s failure to explicitly consider the section 3553(a)
factors without other evidence in the record demonstrating that they were thoroughly considered by the district court
would result in a procedurally unreasonable sentencing determination requiring us to vacate and remand for resentencing.
Moreover, that a district court need not use the magic words, “I specifically considered 3553(a)(1) ...” is not a license
for district courts to sentence without developing a sufficient record for appellate courts to review. To the extent that
No. 04-4347 United States v. McBride Page 5

factors for a court to consider, and under Booker’s remedial holding, the Sentencing Guideline range
is one of those factors. That is, while the Guidelines remain important, they are now just one of the
numerous factors that a district court must consider when sentencing a defendant. See e.g., United
States v. Webb, 403 F.3d 373 (6th Cir. 2005) (“[W]hile a district court must still give some
consideration to the appropriate Guidelines range when making a sentencing determination, a court
is no longer bound by the applicable Guidelines.”). To effectuate the Supreme Court’s mandate,
district courts are still required to consider the appropriate Guideline sentencing range. Within this
Guideline calculation is the determination of whether a Chapter 5 departure is appropriate. The
district court’s decision to deny a Guideline-based departure in this part of the calculation, Puckett
holds, is not reviewable by this Court so long as the district court was aware of and understood its
discretion to make such a Guideline-based departure. Puckett, 422 F.3d at 345. This, however, is
not the end of the sentencing inquiry; rather, it is just the beginning. See e.g., United States v.
Mickelson, No. 05-2324, -- F.3d -- (8th Cir. Jan. 6, 2006) (“As we recognized in United States v.
Haack, 403 F.3d 997, 1002-03 (8th Cir. 2005), calculation of the appropriate guideline sentence is
only the first step in sentencing decisions under Booker, for the court must also consider the
§ 3553(a) factors before making its ultimate decision.”).
Once the appropriate advisory Guideline range is calculated, the district court throws this
ingredient into the section 3553(a) mix. Considering, as Booker requires, all of the relevant section
3553(a) factors, including the Guideline range, the district court then imposes a sentence. This
sentence we may — and Booker requires us to — review for reasonableness. See Webb, 403 F.3d
at 383-85 (discussing reasonableness review). This is so, even if the district court rejects a
defendant’s claim for a lesser sentence in light of the section 3553(a) factors.4
This is a major change in the law due to the now-advisory Guidelines. Under the mandatory
Guideline system, a defendant’s only hope of a lesser sentence was a Guideline-based downward
departure. Stewart precluded us from reviewing a denial of the downward departure and thereby
strictly circumscribed our review of certain sentencing determinations. Now, because the Guidelines
are no longer mandatory and the district court need only consider them along with its analysis of the
section 3553(a) factors, the decision to deny a Guidelines-based downward departure is a smaller
factor in the sentencing calculus. Furthermore, many of the very factors that used to be grounds for
a departure under the Guidelines are now considered by the district court — with greater latitude
— under section 3553(a). See e.g., Mickelson, No. 05-2324, at *8 (“In contrast to the sentencing
scheme before Booker when a sentence outside the mandatory guideline range was permitted only
on very limited grounds, there are now more sentencing variables.”).
Thus, Puckett simply precludes our review of that narrow determination of a denial of a
Chapter 5 Guideline departure within the context of the Guideline calculation.5 It does not prevent
our review of a defendant’s claim that his sentence is excessive based on the district court’s
unreasonable analysis of the section 3553(a) factors in their totality.

a district court does specifically cite to the section 3553(a) factors, our review is that much easier, and we can more
precisely consider the district court’s reasoning. To the extent that the court hides its reasoning or requires us to ponder
and speculate, the more likely we are to find procedural unreasonableness in the court’s sentencing determination.
4
This review did not occur in Puckett, of course, because the majority determinated that the issue was not
properly raised. Puckett, 422 F.3d at 345.
5
It is perhaps helpful to think of Chapter 5 departures, which Puckett addresses, as Guideline departures. In
turn, sentences lower than the Guidelines recommendation based on section 3553(a) factors, can be thought of as Non-
Guideline departures, which are fully reviewable by us for reasonableness.
No. 04-4347 United States v. McBride Page 6

We further recognize that there is not complete agreement among the courts over whether
Guideline-based “departures” truly even exist at this point. The Seventh Circuit has expressly stated
that “framing of the issue as one about ‘departures’ has been rendered obsolete . . . It is now clear
that after Booker what is at stake is the reasonableness of the sentence, not the correctness of the
‘departures’ as measured against pre-Booker decisions that cabined the discretion of sentencing
courts to depart from guidelines that were then mandatory.” United States v. Johnson, 427 F.3d 423,
426 (7th Cir. 2005); see also United States v. Arnaout, — F.3d —, 2005 WL 3242213 (7th Cir.
2005); United States v. Wing, No. 05-2263, -- F.3d --, *16-17 (8th Cir. Jan. 6, 2006) (Loken, C.J.,
concurring) (agreeing with Seventh Circuit’s concept of “departures” and stating that “many
departure rules under the mandatory guidelines have little or no practical impact on sentencing under
the post-Booker advisory guidelines.”). The assertion that departures are obsolete has an element
of truth — for there is now no mandatory guideline range from which to depart — and does
properly shift the focus of our review to reasonableness. Nevertheless, the appropriate Guideline
range — including Guideline departures — must still be considered. Because Guideline
“departures” are a part of the appropriate Guideline range calculation, we believe that Guideline
departures are still a relevant consideration for determining the appropriate Guideline sentence. This
Guideline sentence is then considered in the context of the section 3553(a) factors.
Puckett stands for the proposition that we cannot review a district court’s decision to deny
a Chapter 5 Guideline departure in calculating the Guideline sentence. We must review, however,
for reasonableness, the district court’s consideration of the Guideline sentence in the context of the
other section 3553(a) factors. To interpret Puckett more broadly — that is, to preclude our review
of a district court’s decision not to sentence below the applicable Guideline range — would run
completely contrary to Booker’s mandate and is unreconcilable with reasonableness review and this
Circuit’s post-Booker case law. Therefore, we interpret Puckett to comply with the Supreme Court’s
mandate.
IV.
We now review McBride’s sentence for reasonableness consistent with Webb. This includes
review of the district court’s decision not to impose a lower sentence based on the economic reality
principle pursuant to its consideration of factors under section 3553(a). Upon resentencing, the
district court properly considered the economic reality principle as a basis for downward departure.
That court, however, declined to revise its original sentence, because it found that a downward
departure would understate McBride’s criminal history, and because McBride had recently made
clear to the district court that he intends to “disrupt the proper functioning of the government by
whatever means he may employ.” The court concluded that these considerations, “both of which
would support upward departures as noted by the Probation Officer, outweigh the need to downward
depart.”
Here, the district court specifically set forth its treatment of substantially all the factors set
forth in section 3553(a) in sentencing McBride. The district court discussed the nature and
circumstances of the offense, and McBride’s history and characteristics. See § 3353(a)(1). In
announcing the alternative sentence, the district court discussed the sentence as a means to reflect
the seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense. See § 3553(a)(2)(A). The court noted that the sentence would be an adequate deterrent to
those who may seek to mimic McBride’s conduct in the future. See § 3553(a)(2)(B). The court
discussed the likelihood that McBride would commit future crimes, See § 3553(a)(2)(C), and
acknowledged and rejected other forms of sentencing that were available. See § 3553(a)(3). Finally,
the court considered a lesser sentence based on the economic reality principle.
This Court generally remands to the district court when the lower court fails to mention
section 3553(a) or provide sufficient information with regard to the sentence to permit a
No. 04-4347 United States v. McBride Page 7

reasonableness review. Webb, 403 F.3d at 383. See, e.g., United States v. Beck, No. 04-6494, 2005
WL 2108332, at *3 (6th Cir. 2005). Here, the district court both mentioned section 3553(a) and
actually considered the individual factors contained therein. In sum, we have reviewed the
sentencing proceedings and, pursuant to Webb, find that the district court’s procedural and
substantive determinations were reasonable. We therefore find that McBride’s sentence was
reasonable and accordingly affirm.