United States v. Henson

*744SHEPHERD, Circuit Judge,

dissenting.

Because I do not believe that the government has carried its burden of showing the harmlessness of the district court’s significant procedural error,4 applying a presumption of reasonableness to Henson’s advisory guidelines range, I dissent.

In this case, the government, as “the party defending the sentence,” bears the burden of “persuad[ing] the court of appeals that the district court would have imposed the same sentence absent the erroneous factor.... ” Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992); see 18 U.S.C. § 3742(1); United States v. Tabor, 531 F.3d 688, 692 (8th Cir.2008). The government urges that the district court’s significant procedural error was harmless because the judge stated that, even absent a presumption of reasonableness, he would have imposed the same sentence. The majority accepts the government’s position.

The district court’s explanation for Henson’s sentence is as follows:

Well, let me say, first of all, as counsel pointed out, that the court is obligated under 8th Circuit law to find the sentencing guidelines presumptively reasonable, and so I have to say that I take that into consideration in all the decisions that I make with regard to departures from the guidelines. And in addition to that, I don’t find the guidelines to be unreasonable in this case. So while I take it into account, I see no reason that I would do anything different had I had the opportunity to not do that. So the request [to vary from the guidelines based on Henson’s medical condition] is denied.

Tr. 8. With respect to Henson’s request for a downward variance “based on the factors that are set forth in 18 U.S.C. 3553(a) ... particularly] ... the extreme medical problems that Mr. Henson is currently suffering from,” Tr. 4, the district court stated:

And that’s health issues notwithstanding. We have, in your fair city, federal medical facilities that can address these and other needs. While I don’t disagree it’s probably a burden on the system, but it’s a burden the system has decided to undertake, and so I think in this case a sentence of 84 months is appropriate, and that’s what I’m going to sentence the defendant to, 84 months’ custody....

Tr. 9.

I agree with the majority that, in a “typical case,” we do not require much explanation when a sentencing judge imposes a sentence within the defendant’s advisory Guidelines range. See Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007); see also United States v. Gray, 533 F.3d 942, 944 (8th Cir.2008). However, Henson *745does not assert a simple challenge to the adequacy of the district court’s explanation for his sentence and need not do so. Rather, Henson seeks the reversal of his sentence based on the district court’s application of a presumption of reasonableness to his Guidelines range, and we all agree that this constituted significant procedural error. Therefore, without a showing of harmlessness by the government, Henson must be resentenced. See 18 U.S.C. § 3742(1); Williams, 503 U.S. at 203, 112 S.Ct. 1112; Tabor, 531 F.3d at 692. Accordingly, as previously stated, the government must “persuade” us that the presumption did not impact Henson’s sentence. See id.; see also Tabor; 531 F.3d at 692. It is for this reason that the adequacy of the district court’s sentencing explanation is at issue in this appeal. Therefore, contrary to the majority’s characterization, this is not an ordinary lack-of-explanation sentencing case as Henson’s sentence is premised on a misapplication of the Guidelines. See United States v. Anderson, 526 F.3d 319, 330 (6th Cir.2008) (“If the premise from which the district court must begin its sentencing analysis ... is incorrect, then it seems that an appellate court would have a difficult time saying that the result would have been unchanged.” (internal citation omitted)); United States v. Langford, 516 F.3d 205, 217 (3d Cir.2008) (“[W]hen the starting point for the § 3553(a) analysis is incorrect, the end point, i.e., the resulting sentence, can rarely be shown to be unaffected.”); see also United States v. Bain, 537 F.3d 876, 886 (8th Cir.2008) (Benton, J., concurring) (recognizing that significant procedural error “taint[sj” a district court’s “entire § 3553(a) explanation”).

This case is analogous to United States v. Pena-Hermosillo, 522 F.3d 1108 (10th Cir.2008). There, the Tenth Circuit determined that the district court committed significant procedural error in its calculation of the advisory Guidelines range because it did not provide a sufficient explanation for its denial of the enhancements sought by the government. Id. at 1111-16. The court then observed, “Normally, our analysis would end here. But in this case the court held, in the alternative, that the same sentence would be imposed even if the advisory guideline range was determined to be improperly calculated,” because the “sentence [was] the most reasonable sentence upon consideration of all the [section 3553] factors....” Id. at 1117 (quotation omitted). Determining that the district court’s alternative holding meant that the court would impose the same sentence even if both recommended enhancements had been applied, the Tenth Circuit held that “where the district court offers no more than a perfunctory explanation for its alternative holding, it does not satisfy the requirement of procedural reasonableness.” Id. at 1118. The court explained, “In the absence of explanation, we might be inclined to suspect that the district court did not genuinely ‘consider’ the correct guidelines calculation in reaching the alternative rationale, as is required under United States v. Booker; 543 U.S. 220, 259-60, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).” Id. (citing Gall v. United States, 552 U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). Similarly, this court has indicated that a significant procedural error can only be rendered harmless by an alternative rationale for an identical sentence where the district court’s alternative explanation is “detailed.” United States v. Icaza, 492 F.3d 967, 970-71 (8th Cir.2007); see Anderson, 526 F.3d at 330-31 (rejecting government’s argument that a district court’s misapplication of the Guidelines was harmless where the district court stated that it “ha[d] also determined that this would be the appropriate sentence and the sentence the Court would have imposed *746even had the Court determined that a different sentencing guideline range applied than the one the Court found applicable”).

In this case, the district court’s statement, “I see no reason that I would do anything different had I had the opportunity to [not presume Henson’s Guidelines range reasonable],” Tr. 8, is the sort of “perfunctory explanation” rejected by the Tenth Circuit because it leaves an appellate court unsure of whether the sentencing court “genuinely ‘considered]’ the [Guidelines range as advisory] in reaching the alternative rationale.... ” See Pena-Hermosillo, 522 F.3d at 1117. Further, it is lacking a “detailed” alternative rationale for the district court’s assertion that an identical sentence would be appropriate, even without presuming Henson’s Guidelines range to be reasonable. See Icaza, 492 F.3d at 970-71; see also Anderson, 526 F.3d at 330-31. After all, a “sentencing judge [must have] set forth enough to satisfy the appellate court that he has ... a reasoned basis for exercising his own legal decisionmaking authority.” Rita, 127 S.Ct. at 2468. Apart from the presumption, I am unable to discern a clear explanation of Henson’s sentence in the record. The majority treats the district court’s rejection of Henson’s argument for a sentence of 60 months based on his medical problems as supporting the conclusion that the government has shown that the application of a presumption of reasonableness to Henson’s Guidelines range did not impact his sentence. I disagree. The district court’s statement reveals its reasoning for refusing to impose a sentence of 60 months based on Henson’s medical condition; however, it does not explain why, absent the presumption, 84 months was the appropriate sentence.

Moreover, the Tenth Circuit has, in several cases, reversed and remanded for resentencing where, as in this case, the district court erroneously applied a presumption of reasonableness and then sentenced the defendant at the bottom of the Guidelines range. See United States v. Conlan, 500 F.3d 1167, 1170 (10th Cir. 2007) (“[The defendant] was sentenced at the very bottom of his advisory guideline range, a sign we have taken in the past to indicate that the court may have done something differently had it not felt mistakenly bound by the guidelines.”); see also United States v. De Jesus-Gomez, 263 Fed.Appx. 707, 710 (10th Cir.2008) (unpublished) (vacating and remanding for resentencing where “[t]he district court, after erroneously applying a presumption of reasonableness, and further stating that [the defendant] had not overcome that presumption, imposed a sentence at the very bottom of the Guidelines range.”); United States v. Begay, 470 F.3d 964, 976-77 (10th Cir.2006) (“But the government fails to argue harmless error. Nor could it do so successfully. The sentence imposed was at the bottom of the Guidelines range. We cannot say whether the district court would have imposed the same sentence if it had properly understood the post-Booker legal landscape.”), rev’d on other grounds, — U.S. — , 128 S.Ct. 1581, 170 L.Edüd 490 (2008). Henson’s very-bottom-of-the-Guidelines-range sentence indicates that, had the district court not been operating under the incorrect notion that the Guidelines range was presumptively reasonable, it might have sentenced Henson in a different manner. See Conlan, 500 F.3d at 1170. This further suggests that the district court’s error was not harmless.

In sum, absent significant procedural error, the sentencing explanation given by the district court in this case might be sufficient. However, the district court committed the significant procedural error of presuming Henson’s Guidelines range to *747be reasonable, burdening the government with demonstrating the error’s harmlessness, i.e., that the district court did not rest Henson’s very-bottom-of-the-Guidelines-range sentence on the presumption. The majority agrees but finds that the government made the requisite showing by pointing to the district court’s apparent attempt to innoculate Henson’s sentence from reversal by stating that, even without the presumption, it would impose an identical sentence. In my view, more explanation is required to remove the taint of the district court’s significant procedural error. Because I find the district court’s bare statement insufficient to demonstrate harmlessness, I would vacate Henson’s sentence and remand for resentencing.

. I note that our caselaw as to whether a significant procedural error can constitute harmless error is inconsistent. Compare United States v. Spikes, 543 F.3d 1021, 1025 (8th Cir.2008) (stating that "an examination for harmlessness is appropriate” where the defendant objected to the significant procedural error); with United States v. Shy, 538 F.3d 933, 937 (8th Cir.2008) (vacating sentence and remanding for resentencing in light of significant procedural error without harmless error or plain error review); United States v. Kemp, 530 F.3d 719, 723 (8th Cir. 2008) (same); United States v. Garcia-Hernandez, 530 F.3d 657, 665-66 (8th Cir.2008) (same); United States v. Pepper, 518 F.3d 949, 953 (8th Cir.), cert. denied,-U.S.-, 129 S.Ct. 138, 172 L.Ed.2d 105 (2008) (same). However, for purposes of this concurrence, I apply the harmless error standard because, even under such a standard, the government has failed to demonstrate that the significant procedural error was harmless.