United States v. Unis Bah

BYE, Circuit Judge,

concurring.

Although I agree the district court miscalculated the guidelines, I write separately because I believe the district court’s error in calculating the guidelines was harmless. “An error is harmless if it is clear from the record that the district court would have given the defendant the same sentence regardless of which guideline range applied.” United States v. Staples, 410 F.3d 484, 492 (8th Cir.2005). The nature of the harmless error test does not depend on whether the district court correctly calculated the guidelines; thus, I disagree with the majority that the harmless error analysis should only be employed after the district court correctly calculates the guideline range. If the district court had correctly calculated the guideline range, there would be no need to engage in this analysis in the first place. See United States v. Haack, 403 F.3d 997, 1003 (8th Cir.2005) (noting although “the sentencing court must first determine the appropriate guidelines sentencing range,” cases may exist “where sentencing factors [are] so complex, or other [18 U.S.C.] § 3553(a) factors may so predominate, that the determination of a precise sentencing range may not be necessary or practical.”). Additionally, I believe our decision in United States v. Mashek, 406 F.3d 1012 (8th Cir.2005), supports, rather than contradicts, the application of the harmless-error analysis in this case. In Mashek, we analyzed the defendant’s sentence for harmless error despite the district court’s incorrect calculation of the guidelines. Id. at 1020. Unlike the case here, the district court in Mashek did not announce an identical alternative sentence. Id. The error in Mashek was, thus, not harmless because we could not say the defendant would have received the same sentence despite the error. Id.

In the case at hand, the district court noted it would have sentenced Bah to the same sentence even if it were “wrong about the application” of the guidelines, and the “guidelines would advise a sentence that was higher or a sentence that was lower.” Because the district court would have sentenced Bah to thirty months of imprisonment no matter how his guideline range should have been computed, the error in the initial guideline calcu*433lation is harmless. See United States v. Hawk Wing, 433 F.3d 622, 633 (8th Cir. 2006) (Loken, C.J., concurring) (noting the harmless-error analysis should be utilized to prevent otherwise “meaningless remands”).

Despite the presence of a harmless error, I nevertheless concur in the result of this case as I believe a sentence of thirty months of imprisonment is unreasonable under the circumstances. Bah’s guideline range was calculated, albeit incorrectly, at ten to sixteen months of imprisonment. This is the exact same range recommended by the PSR under its alternative calculation. However, even the district court acknowledged Bah’s sentence could be calculated in the zero to six-month range, thus making him eligible for probation. Even if Bah’s correct guideline range should be ten to sixteen months, I believe a sentence of thirty months is unreasonable because it represents an upward departure of between 180 percent and 300 percent.

An extraordinary departure “must be supported by extraordinary circumstances.” United States v. Saenz, 428 F.3d 1159, 1162 (8th Cir.2005) (quoting United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir.2005)) (reversing a sixty-eight percent downward departure). A review of the 18 U.S.C. § 3553(a) factors demonstrate no such extraordinary circumstances exist here. This case is unlike United States v. Shannon, 414 F.3d 921, 924 (8th Cir.2005), in which we upheld a sentence of fifty-eight months when the defendant had an advisory guideline range of six to twelve months because the defendant in Shannon, unlike Bah, possessed a seriously under-represented criminal history. Because neither the “nature and circumstances of the offense” nor Bah’s personal and criminal history warranted such an extreme upward departure, see 18 U.S.C. § 3553(a)(1), I believe Bah’s sentence is unreasonable. Additionally, I find such an extreme departure does not further the other Section 3553(a) factors. Thus, I concur.