Remand for Resentencing Required even where Sentencing Judge, Acting Post-Blakely but Pre-Booker, Announced Alternative “Non-Guidelines” Sentence

United States v. John Fuller, Docket No. 04-4595-cr (2d Cir. Oct. 17, 2005) (Oakes, Cabranes, Goldberg (by designation)): In this case, litigated by Colleen Cassidy of this Office, the Circuit primarily holds that remand for resentencing is required pursuant to Fagans even where the sentencing judge announced, at a sentencing that occurred post-Blakely but pre-Booker, that she would impose the same sentence even if the Guidelines were subsequently held unconstitutional by the Supreme Court. There was dicta in Crosby to this precise effect, of course, see 397 F.3d at 118, and the Circuit simply adopts this dicta as its ruling in this opinion. Op. at 9. The Booker error was not harmless despite the judge’s pronouncement of the “alternative sentence,” the Court explained, because such an “alternative sentence is not necesssarily the same one that the judge would have imposed in compliance with the duty to consider all of the factors listed in section 3553(a),” nor is it “necessarily the same one that the judge would have imposed after presentation by the Government of aggravating circumstances or by the defendant of mitigating circumstances that existed at the time but were not available for consideration under the mandatory Guidelines regime.” Op. at 8-9 (quoting Crosby, 397 F.3d at 118).

The Court also held, in a matter of first impression in the Circuit, that a district judge’s failure to abide by § 3553(f)(2)’s requirement to provide a written statement of its reasons for departing from the Guidelines range (here, the judge upwardly departed) does not automatically warrant remand and resentencing. Rather, following the plain language of the statute as well as decisions in three other circuits, the Court concluded that “where a reviewing court determines that a departure is neither ‘too high’ nor ‘too low’ within the meaning of 18 U.S.C. § 3742(f)(2), a district court’s failure to include in the written judgment an explanation for its departure does not provide an independent basis for remand.” Op. at 19-20. (No harm no foul, in short.) The Court cautioned, however, that the “better practice is for the district court to record in its written order of judgment an explanation for all Guidelines departures.” Op. at 20.