RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0018p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES THOMAS MCBRIDE,

Defendant-Appellant.

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No. 04-4347

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.

_________________

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.

_________________

OPINION _________________

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

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

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
No. 04-4347 United States v. McBride Page 5

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 NonGuideline departures, which are fully reviewable by us for reasonableness.

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.
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.