*

 The Honorable Milton Irving Shadur, United States District Judge for the Northern District of Illinois, sitting

by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0446p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CLIFTON L. COUSINS,

 Defendant-Appellant.

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No. 05-3228

Appeal from the United States District Court

for the Northern District of Ohio at Akron.

No. 04-00169—David D. Dowd, Jr., District Judge.

Argued: April 19, 2006

Decided and Filed: November 30, 2006 

Before: MOORE and GIBBONS, Circuit Judges; SHADUR, District Judge.*

_________________

COUNSEL

ARGUED: Dennis G. Terez, ASSISTANT PUBLIC DEFENDER, Cleveland, Ohio, for Appellant.

Robert J. Becker, ASSISTANT UNITED STATES ATTORNEY, Akron, Ohio, for Appellee.

ON BRIEF: Dennis G. Terez, ASSISTANT PUBLIC DEFENDER, Cleveland, Ohio, for

Appellant. Robert J. Becker, ASSISTANT UNITED STATES ATTORNEY, Akron, Ohio, for

Appellee.

_________________

OPINION _________________

MOORE, J., delivered the opinion of the court, in which SHADUR, D. J., joined.

GIBBONS, J. (pp. 9-10), delivered a separate opinion concurring in part and dissenting in part.

KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Clifton Cousins appeals

his sentence for the crimes of threatening to harm the President of the United States and his family,

arguing that the district judge violated the constitutional standard set forth in United States v.

Booker, 543 U.S. 220 (2005), by incorrectly calculating the applicable Sentencing Guidelines range

and by imposing an unreasonable sentence; and contending that the district court committed plain

error by failing to give advance notice, as required by Federal Rule of Criminal Procedure 32(h), of

1
No. 05-3228 United States v. Cousins Page 2

1

 Because § 3D1.2 provides for grouping of counts involving the same victim, the two counts arising from

Cousins’s threats against the President were treated as a single count in the PSR. J.A. at 95 (PSR at 5). Accordingly,

the PSR regarded Cousins’s case as involving only two counts in all. J.A. at 96 (PSR at 6).

2

 Instead of adopting either party’s suggested calculation, the district court determined that the initial offense

level of 12 should be enhanced by three levels for the official status of the victims and another two levels under U.S.S.G.

§ 4B1.1, because Cousins is a career criminal, for an aggregate level of 17. J.A. at 55-56 (Sentencing Hr’g Tr. at 19-20).

The court then applied a three-level reduction for acceptance of responsibility. Id.

its intention to impose an upward variance. For the reasons set forth below, we VACATE Cousins’s

sentence and REMAND this case to the district court for resentencing consistent with this opinion.

I. BACKGROUND

On November 17, 2004, Cousins pleaded guilty to three counts of threatening the President

of the United States, in violation of 18 U.S.C. § 871(a), and the President’s family, in violation of

18 U.S.C. § 879(a)(2). The base offense level for each of these crimes is 12. U.S. SENTENCING

GUIDELINES MANUAL (“U.S.S.G.”) § 2A6.1(a)(1). In the pre-sentence investigation report (“PSR”),

the probation officer suggested a three-level enhancement, under § 3A1.2 of the Guidelines, because

of the official status of the victims. Id. § 3A1.2(a)(1)(C); Joint Appendix (“J.A.”) at 96 (PSR at 6).

The probation officer also suggested a two-level enhancement based upon the multiple counts to

which Cousins pleaded guilty.1

 J.A. at 96 (PSR at 6); U.S.S.G. § 3D1.4. These calculations resulted

in a total suggested adjusted offense level of 17. J.A. at 96 (PSR at 6). Finally, the PSR

recommended that that level be reduced by three for Cousins’s acceptance of responsibility, yielding

a final total offense level of 14. J.A. at 97 (PSR at 7).

Cousins objected to the calculations in the PSR, arguing that the recommended two-level

enhancement for multiple counts was impermissible and, therefore, that the correct adjusted offense

level was 12, the level upon which the parties had agreed in plea negotiations. J.A. at 22 (Cousins

Br. in Resp. to District Ct. Order of January 13, 2005 at 5); J.A. at 115 (Cousins Objections to PSR

at 1). Cousins and the probation officer agreed that Cousins’s criminal history score placed him in

criminal history category VI. J.A. at 103 (PSR at 13); Cousins Br. at 7.

At sentencing, the district judge calculated an adjusted total offense level of 142

 and a

criminal history category of VI, which yielded a Guidelines range of 37 to 46 months’

imprisonment. J.A. at 90 (District Ct.’s Statement of Reasons). The judge then imposed a sentence

of 48 months, an upward variance of two months from the top of the Guidelines range. Id.

Cousins now appeals his sentence on the grounds that the district judge incorrectly calculated

the Guidelines range and that the sentence is unreasonable in light of United States v. Booker, 543

U.S. 220 (2005). He also argues that the district judge failed to give advance notice of his intention

to impose an upward variance from the applicable Guidelines range, pursuant to Federal Rule of

Criminal Procedure 32(h).

II. ANALYSIS

A. Double Counting

Cousins challenges the district court’s calculation of the applicable Guidelines range, on the

ground that the three-level enhancement for the official status of the victims constitutes double

counting because the victims’ identities are elements of the charged offenses. Cousins Br. at 17-20.

Cousins properly preserved this objection for appeal by articulating it during the sentencing hearing.
No. 05-3228 United States v. Cousins Page 3

See United States v. Perkins, 89 F.3d 303, 306-07 (6th Cir. 1996). We review the district court’s

application of the Guidelines de novo. United States v. Jarman, 144 F.3d 912, 914 (6th Cir. 1998).

Cousins argues that, because he could not be found guilty of violating either § 871(a) or

§ 879(a)(2) were his victims ordinary citizens rather than a public official and his relatives, the

Guidelines range applicable to those provisions already takes into account the victims’ status.

Cousins Br. at 17-20. Cousins is mistaken. The Guidelines provision applicable to §§ 871(a) and

879(a)(2), U.S.S.G. § 2A6.1, does not mention victim status. Rather, it applies to all threatening or

harassing communications, irrespective of the identity of the victim. Thus, absent the enhancement,

the sentencing provision makes no distinction between threats toward the First Family and threats

toward ordinary citizens. Cf. United States v. Smith, 196 F.3d 676, 683-84 (6th Cir. 1999) (adopting

the Fifth Circuit’s holding in United States v. Kings, 981 F.2d 790, 793 (5th Cir. 1993), that a district

court does not engage in double counting by applying an official-victim enhancement when the

Guideline establishing the base offense level — as opposed to the statute establishing criminal

liability — does not take the victim’s status into account); compare United States v. Farrow, 198

F.3d 179, 191, 193 (6th Cir. 1999) (reversing the district court’s “cumulative use of the same

conduct to both establish a base offense level and apply an enhancement” and noting this Circuit’s

“well-established rule that impermissible ‘double counting’ occurs when precisely the same aspect

of a defendant’s conduct factors into his sentence in two separate ways”) (emphasis added).

Accordingly, we hold that the district court correctly applied the three-level § 3A1.2 enhancement.

B. Reasonableness of the Variance

Cousins also contends that his sentence is unreasonable because the district judge failed

adequately to explain why the upward variance of two months was “sufficient, but not greater than

necessary,” to comply with the purposes of 18 U.S.C. § 3553(a). In reviewing sentencing decisions,

we apply “a practical standard of review . . . familiar to appellate courts: review for

‘unreasonable[ness].’” United States v. Booker, 543 U.S. 220, 261 (2005).

Guided by Booker’s principle of meaningful appellate review for reasonableness and

its respect for the sentencing goals articulated in § 3553(a), we “may conclude that

a sentence is unreasonable when the district judge fails to consider the applicable

Guidelines range or neglects to consider the other factors listed in 18 U.S.C.

§ 3553(a), and instead simply selects what the judge deems an appropriate sentence

without such required consideration.”

United States v. Richardson, 437 F.3d 550, 553 (6th Cir. 2006) (internal citation and quotation

marks omitted) (quoting United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005)).

Section 3553(a) requires a sentencing court to consider the following factors: (1) “the nature

and circumstances of the offense and the history and characteristics of the defendant”; (2) “the need

for the sentence . . . to reflect the seriousness of the offense, to promote respect for the law, . . . to

provide just punishment,” to deter similar criminal conduct, “to protect the public from further

crimes of the defendant,” and to provide the defendant with training, medical care, or other

treatment; (3) “the kinds of sentences available”; (4) the applicable advisory Guidelines range;

(5) relevant policy statements by the Sentencing Commission; (6) “the need to avoid unwarranted

sentenc[ing] disparities”; and (7) “the need to provide restitution to . . . victims.” 18 U.S.C.

§ 3553(a).

A sentence within the Guidelines range triggers a rebuttable presumption of reasonableness,

see Richardson, 437 F.3d at 553-54, but a court imposing such a sentence must nonetheless

articulate its reasoning with sufficient specificity to permit meaningful appellate review. Id. at 554.
No. 05-3228 United States v. Cousins Page 4

Perhaps most critically, the presumption [of reasonableness] does not excuse a

sentencing court’s failure to adhere to the procedural requirements of a reasonable

sentence and indeed applies only to sentences that generally have satisfied these

numerous requirements. In the Sixth Circuit, as in many other circuits, we

distinguish between the substantive and procedural components of reasonableness

review, and nothing about the presumption permits a sentencing court to ignore the

procedural requirements of a reasonable sentence.

United States v. Buchanan, 449 F.3d 731, 738 (6th Cir. 2006) (Sutton, J., concurring) (internal

quotation marks omitted). In Richardson, we emphasized “the obligation of the district court in each

case to communicate clearly its rationale for imposing the specific sentence.” Richardson, 437 F.3d

at 554. In particular:

Where a defendant raises a particular argument in seeking a lower sentence, the

record must reflect both that the district judge considered the defendant’s argument

and that the judge explained the basis for rejecting it. This assures not only that the

defendant can understand the basis for the particular sentence but also that the

reviewing court can intelligently determine whether the specific sentence is indeed

reasonable.

Id. At the sentencing hearing in this case, Cousins requested that the sentences for all three counts

run concurrently with each other and with Cousins’s state sentence, in order to maximize the

likelihood that Cousins would receive treatment for mental illness and drug dependency. See J.A.

at 70-77 (Sentencing Hr’g Tr. at 34-41).

A district court may impose a sentence outside of the applicable Guidelines range through

a Guidelines or non-Guidelines departure. “Our court has previously explained that departures

based on Chapter 5 of the Guidelines should be referred to as ‘Guideline departures,’ and that

‘sentences lower than the Guidelines recommendation based on section 3553(a) factors’ can be

referred to as ‘Non-Guideline departures.’” United States v. Jones, 445 F.3d 865, 872 n.1 (6th Cir.

2006) (Moore, J., dissenting) (quoting United States v. McBride, 434 F.3d 470, 477 n.5 (6th Cir.

2006)). We often refer to Non-Guideline departures as “variances.” See id.; United States v.

Matheny, 450 F.3d 633, 640 n.4 (6th Cir. 2006). The district court in this case imposed a nonGuidelines sentence without mentioning any of the Chapter 5 bases for departures; in other words,

it imposed a variance. J.A. at 78-79 (Sentencing Hr’g Tr. at 42-43). Variances are neither

presumptively reasonable nor presumptively unreasonable. United States v. Foreman, 436 F.3d 638,

644 (6th Cir. 2006).

We have upheld sentences imposed by district courts after careful balancing of factors

militating toward both stringency and leniency. See, e.g., United States v. Ward, 447 F.3d 869, 871-

72 (6th Cir. 2006):

The district court . . . provided sufficient indication of its consideration of the factors

listed in 18 U.S.C. § 3553(a) to give this court a sufficient basis to review the

sentence for reasonableness. In particular, the district court balanced defendant’s

drug history and the need for defendant to participate in a substance abuse program,

pursuant to 18 U.S.C. § 3553(a)(2)(D), with the severity of his offense including the

need to protect the public, pursuant to 18 U.S.C. § 3553 (a)(2)(A), (B), and (C), and

his history of criminal activity, pursuant to 18 U.S.C. § 3553(a)(1). The district court

also investigated the kinds of sentences available, pursuant to 18 U.S.C.

§ 3553(a)(3), in light of the fact that it imposed restitution on defendant. Thus, in

focusing on the need to protect society from violent criminals, discussing the

seriousness of the crime, taking into account the relatively quick amount of time in
No. 05-3228 United States v. Cousins Page 5

which defendant had amassed an extensive criminal history, while considering as

well defendant’s need for drug treatment, and by deciding to impose restitution on

defendant, the district court took into account all of the relevant factors under 18

U.S.C. § 3553(a).

Notably, the Ward Court applied this stringent level of review to a sentence that fell within the

Guidelines range and was, therefore, entitled to a presumption of reasonableness.

In contrast, we have held that a sentence is unreasonable where the district court lists the

§ 3553(a) factors and various characteristics of the defendant but does not refer to the applicable

Guidelines range or provide reasoning explaining its decision to deviate from that range:

We hold that, even post-Booker, the list provided by the district court, without any

accompanying analysis, is insufficient to justify the sentence imposed, as it renders

our reasonableness review impossible. Although we are fully cognizant of the fact

that district courts are no longer bound by the Guidelines in the manner they once

were, a fact which inevitably may empower district courts with greater flexibility in

sentencing, we nonetheless find that, pursuant to Booker, we as an appellate court

must still have the articulation of the reasons the district court reached the sentence

ultimately imposed, as required by 18 U.S.C. § 3553(c). In our view, Booker

requires an acknowledgment of the defendant’s applicable Guidelines range as well

as a discussion of the reasonableness of a variation from that range.

United States v. Jackson, 408 F.3d 301, 304-05 (6th Cir. 2005).

In pronouncing Cousins’s sentence, the district court noted the gravity of Cousins’s offense,

the difficulty of deterring similar conduct by Cousins or others, and the importance of protecting the

public and the President. The court also concluded that Cousins’s criminal history score, high

though it was, did not adequately reflect the full extent of Cousins’s criminal record. The district

judge then ruled as follows:

Having considered the nature and circumstances of the offense, the history and

characteristics of the defendant, the advisory nature of the applicable guideline,

sentencing guidelines, and in the exercise of the court’s sentencing discretion, the

court sentences the defendant to a term of 48 months for each conviction, with the

terms of 48 months for Counts 1, 2, and 3 to be served concurrently with each other

but consecutive to the sentence now being served by the defendant in state custody.

J.A. at 79-80 (Sentencing Hr’g Tr. at 43-44).

In pronouncing the sentence, the district court did not mention Cousins’s request for

concurrent federal and state sentences or explain the reason for its rejection of that request. J.A. at

79 (Sentencing Hr’g Tr. at 43) (stating only, “I think it’s very doubtful that any appropriate

treatment can be provided for the defendant in the context of correctional treatment, having studied

his record and his conduct”). Nor did the court expressly acknowledge the applicable Guidelines

range. J.A. at 79 (Sentencing Hr’g Tr. at 43) (referring only to “the advisory nature of the applicable

guideline, sentencing guidelines”). See United States v. Davidson, 409 F.3d 304, 310 (6th Cir. 2005)

(“A judge cannot satisfy this duty [to consider the Guidelines recommendation] by a general

reference to the entirety of the Guidelines Manual, followed by a decision to impose a ‘nonGuidelines sentence.’”) (alteration in original) (quoting United States v. Crosby, 397 F.3d 103, 111-

12 (2d Cir. 2005)). Finally, the district judge failed to provide his reasoning for the variance or to

explain how the two months that he added to the maximum Guidelines sentence were related to his

stated goal of protecting the public, which might as easily be invoked to justify a variance of one

day or ten years. We therefore hold that the district court failed to provide sufficient explanation
No. 05-3228 United States v. Cousins Page 6

to permit meaningful appellate review, and the sentence thus falls short of Booker’s procedural

reasonableness requirement. See Booker, 543 U.S. at 224. We would reach the same result even

if a within-Guidelines-range sentence were not viewed as presumptively reasonable.

C. The Notice Requirement of Federal Rule of Criminal Procedure 32(h)

Cousins also points out that the district court failed to give the parties advance notice that

it was considering imposing a sentence outside of the applicable Guidelines range on a ground not

identified in the PSR or in any party’s pre-hearing submission, as required by FED.R.CRIM.P.32(h).

Cousins Br. at 24. Rule 32(h) was adopted in 1996 in response to the Supreme Court’s holding in

Burns v. United States, 501 U.S. 129 (1991). United States v. Vampire Nation, 451 F.3d 189, 195-

96 (3d Cir. 2006); United States v. Walker, 447 F.3d 999, 1006 (7th Cir. 2006). The Burns Court

held as follows:

Here we deal with the extraordinary case in which the district court, on its own

initiative and contrary to the expectations of both the defendant and the Government,

decides that the factual and legal predicates for a departure are satisfied. The

question before us is whether Congress, in enacting the Sentencing Reform Act,

intended that the district court be free to make such a determination without

notifying the parties. We believe that the answer to this question is clearly no.

Burns, 501 U.S. at 135. Rule 32(h), which was formulated while the Guidelines were still

mandatory, codified the Burns principle:

Notice of Possible Departure from Sentencing Guidelines. Before the court may

depart from the applicable sentencing range on a ground not identified for departure

either in the presentence report or in a party’s prehearing submission, the court must

give the parties reasonable notice that it is contemplating such a departure. The

notice must specify any ground on which the court is contemplating a departure.

FED. R. CRIM. P. 32(h).

In this case, the district court, no longer bound by the mandatory Guidelines, utilized not a

departure but a variance. Our sister circuits are split concerning the question whether Rule 32(h)

applies to variances based upon the § 3553(a) factors. The Third, Seventh, Eighth, and Eleventh

Circuits have answered in the negative. Vampire Nation, 451 F.3d at 196 (“What has changed[,]

post-Booker, is that sentencing is a discretionary exercise, and now includes a review of the factors

set forth in § 3553(a). These factors are known prior to sentencing. . . . [and thus] we believe the

element of ‘unfair surprise’ that Burns sought to eliminate is not present.”); Walker, 447 F.3d at

1007 (“The element of unfair surprise that underlay Burns and led to the creation of Rule 32(h) is

no longer present; defendants are on notice post-Booker that sentencing courts have discretion to

consider any of the factors specified in § 3553(a).”); United States v. Long Soldier, 431 F.3d 1120,

1122 (8th Cir. 2005) (“[N]otice pursuant to Rule 32(h) is not required when the adjustment to the

sentence is effected by a variance, rather than by a departure.”); United States v. Irizarry, 458 F.3d

1208, 1212 (11th Cir. 2006) (holding Rule 32(h) inapplicable to such variances because, “[g]iven

Booker, parties cannot claim unfair surprise or inability to present informed comment — the

Supreme Court’s concerns in Burns — when a district court imposes a sentence above the guidelines

range based on the section 3533(a) sentencing factors”).

The Fourth, Ninth, and Tenth Circuits have, however, held that Rule 32(h) continues to apply

to all non-Guidelines sentences. United States v. Davenport, 445 F.3d 366, 371 (4th Cir. 2006)

(“The need for . . . notice is as clear now as before Booker. There is essentially no limit on the

number of potential factors that may warrant a . . . variance, and neither the defendant nor the

Government is in a position to guess when or on what grounds a district court might depart or vary
No. 05-3228 United States v. Cousins Page 7

3

 Although the Dozier opinion uses the term “departs” instead of “varies,” the context of the opinion makes

clear that its holding encompasses both Chapter 5 departures and § 3553(a) variances. See id. at 1218 (quoting from

United States v. Simmerer, 156 F. App’x 124, 128 (11th Cir. 2005), a decision that speaks of a “variance,” and

characterizing it as contrary to the Dozier holding).

4

 Chapter 5, Part K, which lists the departure criteria, was enacted in 1987 and amended in 1990.

. . . .”) (internal quotation marks omitted); United States v. Evans-Martinez, 448 F.3d 1163, 1167

(9th Cir. 2006) (“Post-Booker, the district court . . . . has the discretion to sentence both above and

below the range suggested by the Guidelines. Parties must receive notice the court is contemplating

such a possibility in order to ensure that issues with the potential to impact sentencing are fully

aired.”) (internal citations omitted); United States v. Dozier, 444 F.3d 1215, 1217-18 (10th Cir.

2006) (“We do not question the viability of Rule 32(h) and Burns after Booker. Indeed, we recently

held that[,] post-Booker, the Government is entitled to notice under Rule 32(h) when the District

Court departs downward from the Guidelines.”) (citing United States v. Monroy, 135 F. App’x 190,

193 (10th Cir. 2005)).3

We find persuasive the reasoning of the circuits that continue to apply Rule 32(h) to all

sentences that deviate from the Guidelines. While it is true that, after Booker, parties may be

assumed to know that a district court may impose a variance on the basis of a factor not identified

in the PSR or in a party’s submission, the same was true of departures before Booker. Chapter 5 of

the Guidelines, like § 3553(a), specifically identifies various factors that a court should take into

consideration when deciding whether or not to grant a departure. Section 5K2.1, for instance,

authorizes a sentencing court to enter an upward departure upon a finding that a defendant’s crime

resulted in a death. U.S.S.G. § 5K2.1. Similarly, the court may depart if the defendant caused

significant physical injury, with the degree of the departure corresponding to the severity of the

injury, and so on. Id. § 5K2.2.

Chapter 5’s lengthy list of departure criteria provided guidance to parties seeking to identify

likely sentencing issues well before Booker was decided.4 We cannot discern any distinction

between the departure criteria and the § 3553(a) factors, in terms of the notice that they provide to

parties preparing for sentencing. Accordingly, we join the Fourth, Ninth, and Tenth Circuits in

holding that Rule 32(h) of the Federal Rules of Criminal Procedure applies equally to Chapter 5

departures and § 3553(a) variances. In this case, the district court imposed a two-month upward

variance from the Guidelines range, despite the fact that neither the government nor the PSR had

recommended such a variance. Cousins did not object to the district court’s failure to provide

advance notice that it was considering the variance, and thus we review the court’s action for plain

error. See United States v. Meeker, 411 F.3d 736, 744 (6th Cir. 2005).

Plain-error review is governed by Rule 52(b), which provides that “[a] plain error that affects

substantial rights may be considered even though it was not brought to the court’s attention.” FED. R. CRIM. P. 52(b). To vacate a sentence for plain error, we must find (1) an error that (2) is plain,

(3) affects substantial rights, and (4) “seriously affects the fairness, integrity or public reputation of

judicial proceedings.” United States v. Olano, 507 U.S. 725, 732-34, 736 (1993) (internal quotation

marks and alteration omitted). We have previously held that “[a] sentencing court that fails to

provide reasonable notice of its intention to depart from the Guidelines range . . . commits plain

error.” Meeker, 411 F.3d at 744.

“Having demonstrated obvious error, [Cousins] must establish an effect on his substantial

rights, and a serious impact to the fairness, integrity or public reputation of the judicial proceeding,

to fulfill the further requirements of the plain error test.” United States v. Lopez-Medina, 461 F.3d

724, 745 (6th Cir. 2006). “An effect on substantial rights is typically established through a showing

of an actual effect on the outcome of the case.” Id. While Cousins has not produced (and, indeed,
No. 05-3228 United States v. Cousins Page 8

it will be the rare defendant who can produce) evidence that his sentence would have been different

had the district court provided him with advance notice of its intention to impose an upward

variance, he does argue that such notice would have permitted his counsel to address the district

court’s concerns regarding his prior criminal history and potential (or lack thereof) for rehabilitation.

In Meeker, we held that the defendant had not shown prejudice where “the evidence

supporting an upward departure was essentially irrebuttable.” Meeker, 411 F.3d at 746. There, the

district court had departed upward in sentencing a defendant convicted of fraud, on the grounds that

“the offense involved the knowing endangerment of the solvency of one or more victims” and that

“the offense caused reasonably foreseeable, physical or psychological harm or severe emotional

trauma.” Id. at 745 (internal quotation marks omitted). The evidence upon which the sentencing

court relied consisted of “a five-page list of the victims’ names and the amount of their financial

losses,” as well as “victim letters, wherein their authors described the emotional impact that

Meeker’s fraud was having on them.” Id.

In contrast to the facts of Meeker, the evidence supporting the variance in this case is not

“irrebuttable.” On the contrary, in light of the variety of considerations relied upon by the district

judge and the minimal variance that he imposed—a mere two months above the top of the

Guidelines range—it appears at least possible that defense counsel could, given adequate notice,

have prepared additional argument and evidence and thus persuaded the district court that the

guideline range was appropriate.

“The final inquiry is whether the error seriously affected the fairness, integrity, or public

reputation of the judicial proceedings. Whether this factor is met is within our discretion to decide.”

United States v. Hamm, 400 F.3d 336, 340 (6th Cir. 2005) (internal quotation marks and citation

omitted). Both the Supreme Court and this court have declined to exercise their discretion to vacate

erroneous sentences when the evidence supporting the district court’s findings is “overwhelming”

and “essentially uncontroverted.” See, e.g., United States v. Cotton, 535 U.S. 625, 633 (2002)

(internal quotation marks omitted); United States v. Stewart, 306 F.3d 295, 318 (6th Cir. 2002), cert.

denied, 537 U.S. 1138 (2003), 538 U.S. 1036 (2003), 537 U.S. 1146 (2003); United States v. Harris, 293 F.3d 970, 974 (6th Cir.), cert. denied, 537 U.S. 1073 (2002).

As explained supra, however, the evidence supporting the variance in this case is neither

overwhelming nor uncontroverted. We therefore conclude that the district court committed

reversible error by imposing a variance on a ground not specified in the PSR or in any party’s

submission, without providing advance notice as required by Rule 32(h).

III. CONCLUSION

Cousins’s sentence is unreasonable under Booker because the district judge failed to provide

an adequate explanation for his imposition of a sentence with an upward variance. Moreover, the

district court plainly erred in failing to give the parties notice pursuant to Federal Rule of Criminal

Procedure 32(h) that he was contemplating an upward variance on a ground not previously

identified. The sentence is therefore VACATED and this case is REMANDED to the district court

for resentencing consistent with this opinion.
No. 05-3228 United States v. Cousins Page 9

1

 Cousins initially sent his threats from state prison and later reiterated them in an interview while in state

prison.

_________________________________________________

CONCURRING IN PART, DISSENTING IN PART _________________________________________________

JULIA SMITH GIBBONS, Circuit Judge, concurring in part and dissenting in part. I agree

with the majority’s conclusion that we must remand this case for resentencing but disagree with the

opinion’s analysis on the Rule 32(h) issue. I also write separately to make a few comments on the

other issues.

Initially, although I agree with the majority’s resolution of the double-counting issue, I note

that we need not resolve this issue. Cousins is a career offender, a status he does not challenge.

Thus, under U.S.S.G. § 4B1.1(b)(F), his offense level is 17. Success on the double-counting issue

would not alter his guideline range.

Second, I offer a few thoughts about the adequacy of the district court’s explanation of its

decision to sentence Cousins to a sentence two months longer than the top of the applicable

guideline range and to make the federal sentence consecutive to the state sentence. The district

court’s discussion of its reasoning with respect to the sentence is fairly extensive. It includes several

salient observations that might well justify the sentence imposed. For example, the court indicates

that Category VI underrepresents the seriousness of the defendant’s criminal history and references

the seriousness of the crime, the need to protect the public, and the likely futility of treatment for the

defendant in prison. The district court’s explanation is thoughtful and covers factors admittedly

relevant to sentencing. Moreover, U.S.S.G. § 5G1.3(a) directs that a consecutive sentence be

imposed when the defendant committed the crime while serving a term of imprisonment.1

 We have

not considered the treatment of guideline provisions of this type under an advisory guideline regime,

but it is fair to say that the district court was, at a minimum, entitled to take it into account. Under

these circumstances, I am reluctant to remand the case to a district judge who has doubtless given

careful thought to the sentence. Yet I believe that we must do so because we cannot properly review

the sentence for reasonableness without knowing why the court selected the particular sentence it

imposed. The court’s failure is neglecting to tell us which, if any, of the factors it mentioned

prompted the decision to sentence Cousins to 48 months and why the 48-month sentence was chosen

as opposed to some other one.

Turning last to the Rule 32(h) issue, my preferred course would be declining to resolve it.

We are remanding the case anyway and, upon remand, Cousins will clearly be on notice that the

district court is contemplating a variance, since it previously imposed one. The question presented

has divided our sister circuits, and we have no good reason to reach it here. But since the majority

has chosen to reach it, I will note that any error was not a plain error affecting substantial rights.

Although the majority pays lip service to the requirement that the defendant make “a showing of an

actual effect on the outcome of the case,” Lopez-Medina, 461 F.3d at 745, it then effectively

eliminates the requirement. The majority distinguishes Meeker by concluding that “the evidence

supporting the variance in this case is not ‘irrebuttable.’” (Op. 8.) However, prejudice is not

demonstrated by a simple lack of irrebuttable evidence. “It is the defendant rather than the

Government who bears the burden of persuasion with respect to prejudice.” Olano, 507 U.S. at 734.

As the majority correctly notes, Cousins merely “argues that [notice of the upward variance] would

have permitted his counsel to address the district court’s concerns.” He gives no “indication as to

how, if given the proper notice and opportunity to comment, he could have challenged the

information.” United States v. Nappi, 243 F.3d 758, 770 (3d Cir. 2001), cited with approval in
No. 05-3228 United States v. Cousins Page 10

Meeker, 411 F.3d at 746. The majority tacitly recognizes this when it makes its highly-qualified

conclusion that “it appears at least possible that defense counsel could, given adequate notice, have

prepared additional argument and evidence.” (Op. 8 (emphasis added).) Yet there is no evidence

to support this conclusion. Cousins’s brief in this appeal was filed more than ten months after the

sentencing hearing, yet in that time defense counsel still has not presented the court with an actual

argument that might have affected the outcome of the case. Cousins’s conclusory assertion in his

brief is an inadequate basis to find that a failure to give the Rule 32(h) notice affected his substantial

rights. While the majority may be correct that it is difficult for a defendant to prove that his sentence

would have been different, it is not difficult for, and the prejudice analysis requires, the defendant

at least to articulate the arguments that would have been made. See Nappi, 243 F.3d at 770 (“[The

defendant] must convince us that . . . he would have done something by way of argument or

proof . . . that probably would have impacted upon the Court’s sentence.”) I thus dissent from the

majority’s analysis on the Rule 32(h) issue.