NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0731n.06

                                      Nos. 08-5890, 08-5891                               FILED
                                                                                      Nov 09, 2009
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE MIDDLE
                                       )                  DISTRICT OF TENNESSEE.
MARK STEVEN JOHNSON,                   )
                                       )
                                                                  OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: O’CONNOR,* Associate Justice (Ret.); MOORE and COOK, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Mark Steven Johnson

appeals several orders relating to the revocation of his supervised release. Specifically, Johnson

challenges the denial of his motion to review the entirety of his U.S. Probation Office (“USPO”) case

file and the denial of his motion to dismiss the summons to revoke his supervised release. Johnson

also argues that the district court erred in revoking his supervised release and that his sentence was

unreasonable. For the reasons set forth below, we AFFIRM the district court’s denial of Johnson’s

motion to review his probation file, the denial of his motion to dismiss, and the revocation of his

supervised release. We find Johnson’s sentence procedurally unreasonable, however, and we

VACATE his sentence and REMAND for resentencing.




       *
        The Honorable Sandra Day O’Connor, Associate Justice (Ret.) of the United States Supreme
Court, sitting by designation.
                                       I. BACKGROUND

       Johnson pleaded guilty to two counts of bank fraud in violation of 18 U.S.C. § 1344 on

November 12, 2002. Pursuant to this guilty plea, the district court sentenced Johnson to concurrent

terms of eighteen months’ imprisonment followed by concurrent terms of three years’ supervised

release. The district court also ordered Johnson to pay restitution. Johnson did not appeal his

conviction or sentence. Upon release from imprisonment, Johnson began his three-year period of

supervised release on December 8, 2004. The supervised-release order imposed the following

conditions relevant to this appeal: (1) “defendant shall not commit another federal, state, or local

crime,” (2) “defendant shall provide the probation officer access to any requested financial

information,” and (3) “defendant shall not incur new debt or open additional lines of credit without

the prior approval of the probation officer unless the defendant is in compliance with the payment

schedule for any court-imposed financial sanctions.” J., Appellee App. at 5-6; Amend. J., Appellee

App. at 18-19.

       On April 18, 2007, during his period of supervised release, Johnson was arrested for identity

theft and charged with violating Tennessee Code § 39-14-150. Johnson’s son, Steve, had discovered

three creditors listed on his credit report (Chase Bank, Washington Mutual, and Nashville Tractor)

for debts that he had not personally incurred. Because Steve believed it was Johnson who had

incurred the debts, he conducted a recorded phone call from the police station to Johnson. During

the call, Johnson acknowledged that he had opened Chase Bank and Washington Mutual credit-card

accounts in his son’s name. Dist. Ct. Revocation Order of 5/19/08 at 3, ¶¶ 9-10, Record on Appeal

(“ROA”) at 88. Johnson also “acknowledged that he obtained a loan” for “approximately $20,000

from Nashville Tractor.” 

¶11. Johnson denied using Steve’s Social Security number to open


                                                 2
the Washington Mutual card or to secure the Nashville Tractor loan. 

¶¶ 10-11. The State

of Tennessee “retired” the criminal charge against Johnson on October 3, 2007, provided that

Johnson agree “‘to never use his son’s name or identifying information for financial gain or to obtain

credit.’” 

¶14 (quoting Certified Order of Retirement). Johnson also admitted in the Order

of Retirement that the credit cards and loan “were obtained by him and not his son.” 

26, 2007, the USPO submitted a Petition for Summons (“Petition”) alleging that

Johnson had violated the three above-mentioned conditions of his supervised release and

recommending the revocation of his supervised release. Pet., ROA at 9-12. In support of revocation,

Johnson’s probation officer claimed that Johnson had failed to “provide the probation officer with

supporting documentation for the net worth statement he provided, along with amended tax returns

for 2005 and a promissory note from August 2003,” which the USPO had requested. 

The

Petition indicated that Johnson had been arrested on the state identity-theft charge and had admitted

to opening and using two credit cards under his son’s name and Social Security number. 

The officer also alleged that Johnson had failed to provide information about the purchase of a new

big-screen hi-definition television and security-camera system, as requested. 

The district

court issued the summons and scheduled a hearing. 

       Prior to the hearing, Johnson filed a motion to review his USPO case file for the purposes

of preparing for the hearing and obtaining evidence “relevant to the court’s decision . . . whether to

revoke Mr. Johnson’s supervised release, the length of any incarceration if the supervised release is

revoked[ and whether] to impose an additional term of supervised release.” Def. Mot. to Review

File, ROA at 13, 15. The Government opposed the request, responding that the Federal Rules of

Criminal Procedure require release of only the evidence used against the defendant. Gov’t Resp.,


                                                  3
ROA at 16-17. The district court denied Johnson’s motion, finding that “Defendant was provided

with the relevant documents from the USPO file” pursuant to the Federal Rules of Criminal

Procedure and Sixth Circuit case law. Order of 9/10/07 Denying Mot. to Review, ROA at 42.

       On July 20, 2007, Johnson filed a motion to dismiss the Petition in its entirety, arguing that

“the supervised-release regime of 18 U.S.C. § 3583 and Fed. R. Crim. P. 32.1(b) violates both the

Fifth and Sixth Amendments to the United States Constitution” because any prison sentence that

could result from the revocation proceeding “will be authorized solely by judicial factfinding” based

upon a preponderance of the evidence. Mot. to Dismiss, ROA at 19. The Government responded

that Fifth and Sixth Amendment protections were not applicable in the context of revocation

proceedings and Federal Rule of Criminal Procedure 32.1 adequately protected Johnson’s due-

process rights. Gov’t Resp., ROA at 35-36. The Government also noted that the revocation

proceeding would “not expose defendant to a penalty greater than the statutory maximum to which

he was exposed to at the time he committed the underlying offense nor to a penalty greater than that

to which he was sentenced.” 

The district court held a hearing on October 5, 2007, and

denied Johnson’s motion to dismiss. Order of 10/15/07 Denying Mot. to Dismiss, ROA at 57.

       The district court proceeded with the revocation hearing on March 21 and March 26, 2008.

Johnson’s probation officer, his son Steve, and his daughter-in-law testified on the Government’s

behalf. The Government also introduced a recording of the conversation between Johnson and

Steve, Johnson’s Presentence Investigation Report (“PSR”) from the underlying criminal conviction,

and an official copy of the Tennessee Order of Retirement for the identity-theft charge. Ultimately,

the district court concluded that the preponderance of the evidence supported the conclusion that

Johnson had violated the terms of his supervised release by committing identity theft and by failing


                                                 4
to provide the USPO with financial information as requested and required. Dist. Ct. Revocation

Order of 5/19/08 at 6-7, ROA at 91-92.          The district court concluded, however, that the

preponderance of the evidence failed to support a violation of the third condition—that Johnson not

open new lines of credit without prior of approval unless he was compliant with the payment

schedule for his court-imposed restitution. 

As a result of the two violations, the district

court revoked Johnson’s supervised release and sentenced him to twenty months’ imprisonment,

which was above the recommended Guidelines range. Johnson filed a timely appeal.

                                          II. ANALYSIS

A. Motion to Review Entire USPO

       Johnson argues that the district court erred in denying his motion to review his entire USPO

probation file in light of Federal Rule of Criminal Procedure 32.1, which entitles the defendant to

“present any information in mitigation” during a revocation hearing. Johnson claims that because

of the extensive discretion judges are afforded in imposing a prison sentence after the revocation of

supervised release, his “counsel needed access to the file to be prepared for . . . the functional

equivalent of a sentencing hearing” and that the district court’s refusal to allow access to the file

curtailed improperly Johnson’s ability to present mitigating evidence during the sentencing phase

of his revocation hearing. Appellant Br. at 17. We find Johnson’s argument unavailing.

       This court reviews a district court’s discovery-based rulings under the Federal Rules of

Criminal Procedure for abuse of discretion, and a district court’s determination will be reversed only

if the abuse of discretion caused more than harmless error. See United States v. White, 

,

398 (6th Cir. 2007). Federal Rule of Criminal Procedure 32.1 governs supervised-release-revocation

hearings. In relevant part, Rule 32.1(b)(2) provides that a person subject to a revocation hearing “is


                                                  5
entitled to: . . . (B) disclosure of the evidence against the person; [and] . . . . (E) an opportunity to

make a statement and present any information in mitigation.” Fed. R. Crim. P. 32.1(b)(2). In

support of its position that disclosure of the USPO file was not required, the Government relies on

United States v. Guardino, 

(6th Cir. 1992). In Guardino, a panel of this court noted

in dicta that then-existing Rule 32.1(a)(2) (today’s Rule 32.1(b)(2)(B)), “require[d] the government

to disclose . . . evidence only if it was actually used against the probationer.” 

The

Guardino panel held that because the probationer’s notice of appeal was untimely, the panel lacked

jurisdiction to consider whether the district court had erred in denying a motion to compel production

of a probation officer’s memo for purposes of a probation-revocation hearing. 

689.

Despite this jurisdictional defect, however, the panel stated that “[e]ven if” it had jurisdiction, it

would affirm the district court’s denial of the probationer’s motion because the officer’s “memo was

not used as evidence during any of the revocation hearings,” and the district court did not rely on the

memo in revoking probation. 

As a result, the panel indicated that the memo did not fall

within the purview of today’s Rule 32.1(b)(2)(B). 

the Government’s contention,

then, Guardino’s analysis of Rule 32.1 was dicta and is not controlling. Guardino is further

distinguishable from the instant case because Johnson is seeking access to mitigating information

under Rule 32.1(b)(2)(E), which was not added to the Rules until 2005, and which Guardino could

not, therefore, have addressed.

        Johnson, however, has presented no authority for the rule he proposes this panel adopt—that

his Rule 32.1(b)(2)(E) right to “present any information in mitigation” also embodies a right to

unfettered access to a probation officer’s file to search for that information. Johnson argues that

because “the probation office was actively communicating with the State prosecution” about a


                                                   6
variety of case-related matters, “there is much room for unrevealed information.” Appellant Br. at

19. But this statement alone does not persuade us that Johnson was likely to uncover mitigating

evidence material to his case if he were allowed access to the USPO file, thus requiring the

conclusion that the district court abused its discretion in denying his motion. Johnson’s broad rule,

as proposed, would turn a hearing-based right to present mitigating evidence into an unrestricted

right of pre-hearing discovery. Defendants in criminal trials are not even entitled under the Federal

Rules of Criminal Procedure to the extent of pre-trial discovery that Johnson seeks from the USPO.

See generally Fed. R. Crim. P. 16 (outlining discovery and inspection obligations).1 As a result, we

conclude that under these particular circumstances, the district court did not abuse its discretion in

denying Johnson’s motion to review the USPO file for unidentified and entirely speculative

information.

B. Motion to Dismiss Petition to Revoke Supervised Release

       Johnson further contends that Federal Rule of Criminal Procedure 32.1 and 18 U.S.C. § 3583,

which together govern supervised release, violate the Sixth Amendment to the U.S. Constitution.

Specifically, Johnson contends the supervised-release provisions cannot survive the Supreme Court’s

decisions in Blakely v. Washington, 

(2004), and Apprendi v. New Jersey, 

       1
         This circuit has never explicitly determined whether the discovery obligations under Federal
Rule of Criminal Procedure 16 apply to supervised-release-revocation hearings. However, Rule 16
may apply by virtue of the fact that supervised-release hearings were not explicitly excluded by Rule
1(a)(5). See Fed. R. Crim. P. 16 (discovery and inspection obligations); 

the
“[p]roceedings not governed by” the Federal Rules of Criminal Procedure); cf. United States v.
Waters, 

, 942-43 (6th Cir. 1998) (finding that “[b]ecause supervised release revocation
is not listed as an exception” to Rule 43(a)’s requirement that a defendant be present when
sentenced, the Rule applied to supervised-release revocation hearings). Although Rule 1 (former
Rule 54) was promulgated before the advent of supervised release, see 18 U.S.C. § 3583, in 2002
the Rule drafters modified the exclusions list without adding supervised-release or probation-
revocation hearings. See Fed. R. Crim. P. 1 Advisory Comm. Notes (2002 amends.).

                                                  7
(2000), as affirmed in United States v. Booker, 

(2005), because the provisions

authorize the imposition of a prison sentence above that permitted by the initial fact of conviction

and one based solely on judicial fact finding by the preponderance of the evidence.2 Appellant Br.

at 20, 22. Johnson asserts that while the facts he admitted in his guilty plea to bank fraud

“established the range of the period of incarceration, fine amount, restitution, supervised release

range, and special assessment amounts[,] . . . . his guilty plea[] did not establish how long he could

serve on a supervised release violation sentence in prison; that determination required further factual

findings made by the District Court [in 2008], without a jury, by a preponderance of the evidence

and without an indictment.” 

(emphasis in the original). In essence, Johnson argues that he

is entitled to “constitutionally adequate procedures” such as a grand jury indictment, proof beyond

a reasonable doubt, and the right to a jury trial before the district court can revoke his supervised

release and institute a prison term. 

-22.

       We review de novo constitutional issues. J.L. Spoons, Inc. v. Dragani, 

, 382

(6th Cir. 2008). The Supreme Court and the Sixth Circuit have yet to address explicitly the impact

of Booker, Apprendi, and Blakely on the supervised-release framework. Every circuit court to

confront the issue, however, has concluded that 18 U.S.C. § 3583 remains constitutional as applied

in the context of supervised-release revocation, albeit on varying grounds. See, e.g., United States



       2
         Johnson’s argument that his Fifth Amendment right to due process was violated by a
preponderance-of-the-evidence standard in his sentencing is foreclosed by United States v. Jones,

, 250 (6th Cir. 2007). See United States v. Johnson, 

, 700 (2000) (“[T]he
violative conduct . . . need only be found by a judge under a preponderance of the evidence standard,
not by a jury beyond a reasonable doubt.). Although Johnson claims the Jones “line of cases was
wrongly decided,” Appellant Br. at 20, this panel is not at liberty to overrule the decision of another
panel or the Supreme Court. See Salmi v. Sec’y of Health & Human Servs., 

, 689 (6th
Cir. 1985).

                                                     8
v. Carlton, 

, 807 (2d Cir. 2006); United States v. Dees, 

, 853 (3d Cir.

2006), cert. denied, 

(2007); United States v. Faulks, 195 F. App’x 196, 198 (4th Cir.

2006) (unpublished), cert. denied, 

(2007); United States v. Huerta-Pimental, 

, 1225 (9th Cir.), cert. denied, 

(2006); United States v. Cordova, 

,

1186-88 (10th Cir. 2006); United States v. Hinson, 

, 119 (5th Cir. 2005), cert. denied,

(2006); United States v. Work, 

, 491 (1st Cir. 2005); United States v.

Coleman, 

, 1104 (8th Cir. 2005). We join these circuits in concluding that 18 U.S.C.

§ 3583 and Federal Rule of Criminal Procedure 32.1 remain constitutional.

       In Morrissey v. Brewer, 

(1972), the Supreme Court indicated that “the full

panoply of rights due a defendant in a [criminal] proceeding does not apply to parole revocations”

because those proceedings are not a “criminal prosecution in any sense.” 

489. The

Supreme Court extended its reasoning to probation-revocation hearings in Gagnon v. Scarpelli, 

, 782 (1973). Given the similarities between parole, probation, and supervised release, we

have considered the relevant revocation procedures to be analogous for constitutional purposes. See

United States v. Kirby, 

, 627 (6th Cir. 2005); cf. 

(noting

the similarity between supervised release and parole).

       Like parole and probation revocation, a supervised-release-revocation hearing necessarily

occurs after a court has sentenced the defendant for the underlying crime of conviction and after the

defendant has served the initial term of imprisonment. Cf. 

(“Parole arises

after the end of the criminal prosecution, including imposition of sentence.”). Johnson’s argument

that he merits full Sixth Amendment procedural protection during his supervised-release-revocation

hearing fails to appreciate the Supreme Court’s distinction between a hearing where the court


                                                 9
imposes the initial criminal sentence and a hearing where the court fashions a subsequent term of

imprisonment for a violation of a condition of supervised release—i.e., a portion of that initial

criminal sentence. See 

(concluding that post-revocation penalties are

attributable to the “original conviction” and not issued as punishment for the violation of a term of

supervised release). With regard to the revocation proceeding, Johnson had already been convicted

of the underlying crime and was not being subjected to further criminal prosecution so as to

necessitate full constitutional protection. See 

(“We emphasize there is

no thought to equate this second stage of parole revocation to a criminal prosecution in any sense.”).

“‘Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but

only of the conditional liberty properly dependent on observance of special parole restrictions.’”

(quoting 

). Thus, in light of these precedents,

supervised-release-revocation proceedings do not require an indictment, the beyond-a-reasonable-

doubt standard, or a jury trial.

        Johnson attempts to distinguish probation- and parole-revocation cases from cases involving

the revocation of supervised release. He argues that, unlike supervised release, probation revocation

and the parole system do not “involve imposing a sentence beyond that authorized by the jury’s

verdict.” Appellant Br. at 25. Instead, Johnson asserts that probation- and parole-revocation

proceedings effectively require the sentencing court to start over and “impose any sentence that it

could have imposed on the day of the original sentencing”—they are an “activation of the previous

sentence.” 

But, as noted above, the Supreme Court has indicated that supervised

release is, in fact, “part of the penalty for the initial offense,” 

, and because

“supervised release is authorized by the original conviction . . . so too are the consequences of its


                                                   10
violation.” United States v. McNeil, 

, 277 (2d Cir. 2005). Thus, the argument that a

supervised-release sentence is completely divorced from the underlying conviction so as to undercut

an analogy to parole- and probation-revocation hearings is without merit. See 

.

        In sum, there is nothing post-Booker that causes us to question the continuing validity of the

supervised-release-revocation framework. In fact, contrary to Johnson’s argument, the Supreme

Court’s dicta in Booker provides support for the conclusion that the supervised-release regime

remains constitutional. When discussing the general constitutionality of the Sentencing Reform Act

of 1984, and which portions must be severed, the Court noted that “[m]ost of the statute,” including

18 U.S.C. § 3583, “is perfectly valid.” 

(listing provisions); see also 

(relying on Booker dicta for this conclusion); 

(same).

        Even if Apprendi and its progeny were applicable, however, Johnson has failed to show error.

Apprendi and Blakely require that “[a]ny fact (other than a prior conviction) which is necessary to

support a sentence exceeding the maximum authorized by the facts established by a plea of guilty

or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”

. In essence, the potential maximum prison sentence a defendant can serve

is established at the time of the verdict or the guilty plea for the underlying conviction. In this case,

the district court did not exceed the maximum sentence Johnson’s guilty plea authorized—a

maximum thirty-year prison term for bank fraud under 18 U.S.C. § 1344, a five-year term of

supervised release, 

and an additional three-year term of imprisonment if he violated

his conditions of supervised release, 

Johnson received an eighteen-month prison

sentence, followed by a three-year period of supervised release, followed by an additional twenty-


                                                   11
month period of imprisonment when the district court determined that he violated his supervised-

release conditions. The revocation of supervised release did not impose any punishment that the

guilty plea did not authorize. In conclusion, Johnson is not entitled to the protections he seeks, and

his argument that Federal Rule of Criminal Procedure 32.1 and 18 U.S.C. § 3583 are

unconstitutional must fail.

C. Revocation of Supervised Release

       Johnson’s next contention—that insufficient evidence supported the district court’s

determination that he violated the conditions of his supervised release—is also unavailing. We

review a district court’s revocation of an individual’s supervised release for abuse of discretion, its

fact findings for clear error, and its legal conclusions de novo. United States v. Kontrol, 

, 1091-92 (6th Cir. 2009). A district court may revoke a defendant’s supervised release if it

“finds by a preponderance of the evidence that the defendant violated a condition of supervised

release.” 18 U.S.C. § 3583(e)(3).

       As the first ground for revocation, the Petition alleged that Johnson violated the mandatory

condition prohibiting him from committing another federal, state, or local crime, see 18 U.S.C.

§ 3583(d), by being arrested and charged with identity theft. Pet., ROA at 10. Tennessee Code § 39-

14-150 defines identity theft as “knowingly transferring or using, without lawful authority, a means

of identification of another person with the intent to commit any unlawful activity.” State v.

Bowman, No. W2003-02389-CCA-R3-CD, 

, at *2 (Tenn. Crim. App. Jan. 13, 2005)

(unpublished). Johnson argues that the district court’s conclusion was improper because the

evidence established that he had permission to use his son’s information. Appellant Br. at 34.




                                                  12
       Despite Johnson’s claim, sufficient evidence supported the district court’s conclusion that

Johnson did not have permission to use his son’s information and that, as a result, his actions

constituted identity theft. In both a recorded phone call and the Tennessee Order of Retirement,

Johnson admitted to opening two credit cards and obtaining a loan in his son’s name. Johnson’s son

was unaware of the transactions, denied authorizing them, and never received or used the two credit

cards. Although Johnson attempted to show that he had a valid power of attorney that allowed him

to engage in such activity in his son’s name, at no point during the hearing did Johnson contest his

arrest or the fact that he admitted to engaging in the charged activity. Furthermore, the purported

power of attorney was never authenticated or admitted as evidence, and the district court, as the trier

of fact, was entitled to find Johnson’s explanation for his actions incredible. Given this evidence,

the district court did not clearly err in its conclusion that Johnson committed the state crime of

identity theft, which violated one of his conditions of supervised release.

       As a violation of one condition is sufficient to revoke supervised release, we “need not

address” the additional violations because, even assuming district-court error, that error “would be

harmless.” United States v. Lindo, 

, 108 (6th Cir. 1995) (indicating that one or more

probation violations was sufficient to support district court’s discretionary determination to revoke

probation); see also United States v. Lewis, No. 97-5786, 

, at *2 (6th Cir. Feb. 4,

1998) (unpublished) (citing Lindo in the context of supervised release).            In conclusion, a

preponderance of the evidence supported the conclusion that Johnson violated at least one of his

conditions of supervised release, and this infraction required its revocation.3


       3
         The commission of a federal, state, or local crime is considered a “Grade B” violation under
the U.S. Sentencing Guidelines § 7B1.1(a). Upon finding a Grade B violation, the district court was
required to revoke Johnson’s supervised release. See USSG § 7B1.3(a)(1).

                                                  13
D. Reasonableness of the Sentence

        Johnson’s final argument is that the district court abused its discretion in imposing an above-

Guidelines, twenty-month sentence. Appellant Br. at 33. “In this circuit, sentences imposed

following revocation of supervised release are to be reviewed under the same abuse of discretion

standard that we apply to sentences imposed following conviction.” United States v. Polihonki, 

, 322 (6th Cir. 2008) (quotation and alteration omitted). Before reviewing the district

court’s sentence for substantive reasonableness, we must first determine whether the district court

committed any procedural error. See 

v. United States, 

, 

,

591, 598 (2007)). A district court abuses its sentencing discretion if it

        commit[s] [a] significant procedural error, such as failing to calculate (or improperly
        calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
        consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts,
        or failing to adequately explain the chosen sentence—including an explanation for
        any deviation from the Guidelines range.

; see also 

. We conclude that the district court

committed significant procedural errors by failing to calculate the relevant Guidelines range, by

failing to articulate a specific reason for its above-range sentence, and by failing to address Johnson’s

nonfrivolous arguments for an alternative to the Guidelines sentence.

        Title 18 U.S.C. § 3553(c)(2) directs a district court to state the reasons for a particular

sentence and, if the sentence falls outside the applicable Guidelines range, to state “the specific

reason for the imposition of a sentence different from” the recommended range. 18 U.S.C.

§ 3553(c)(2). “The district court must also acknowledge the defendant’s applicable Guideline

range.” United States v. Blackie, 

, 400 (6th Cir. 2008) (quotation omitted). “A




                                                   14
sentence imposed without complying with the requirements of § 3553(c) constitutes error.” 

        The Government conceded in its brief and at oral argument that the district court erred in

failing to acknowledge the appropriate Guidelines range at the sentencing hearing or in its sentencing

order. Appellee Br. at 32. Despite these admitted deficiencies, the Government nevertheless argues

that all parties were “inherently aware of the reasons why the district court imposed a sentence

outside the advisory range” and that the district court was not required to state the appropriate range

because Johnson listed the range in his sentencing memorandum and the Government mentioned the

range during the sentencing hearing. 

see also Sent. Hr’g Tr. at 12; Def. Sent. Mem., ROA

at 94. The Government’s arguments are without merit.

        As we indicated in Blackie, the requirement that the sentencing court state the applicable

Guidelines range is more than a mere formality; the requirement exists to “assure that the court has

properly calculated the applicable Guidelines range, and that adequate explanation is provided to

allow for meaningful appellate review and the perception of a fair sentence.” 

(citing 

-98); see also United States v. Grams, 

, 685-86 (6th

Cir. 2009). In addition to the district court’s failure to identify the appropriate Guidelines range, the

district-court record provides this panel with little to facilitate appellate review of the reasonableness

of the sentence. The district court never acknowledged that it knew it was sentencing above the

recommended range, nor did it engage in an analysis of its reasons for doing so, assuming it was

even aware. In fact, the district court’s statement of reasons in the transcript for issuing the

“maximum” sentence available in light of Johnson’s initial term of supervised release—which,

again, failed to acknowledge that the sentence was above the recommended Guidelines range—is


                                                   15
less than one page long and fails to state a specific reason for the sentence other than the fact that the

court believed Johnson had “no conscience” and needed to be imprisoned to conform his behavior

to the dictates of the law. Sent. Hr’g Tr. at 20-21. This is clearly insufficient under Blackie.

        Furthermore, “[a]lthough the district court is not required to give the reasons for rejecting any

and all arguments made by the parties for alternative sentences, for a sentence to be procedurally

reasonable when a defendant raises a particular, nonfrivolous 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.” United States v. Gapinski, 

, 474 (6th Cir.

2009) (quotations, internal citations, and alterations omitted). Johnson submitted a nine-page

sentencing memorandum setting forth a variety of reasons why he believed he merited a non-

custodial or below-Guidelines sentence. See Def. Sent. Mem., ROA at 94-102. Those reasons

included Johnson’s charitable efforts, his deteriorating health, his age, his lack of dangerousness, the

costs of incarceration compared to house arrest or supervision, and his greater ability to provide

restitution to the victims of the underlying crime of conviction if not incarcerated. 

above, the district court failed to address any of these arguments.

        As the Government again conceded, the only remedy for these procedural errors is to remand

for resentencing.4 Because we find significant procedural error, we need not address Johnson’s claim

that the sentence was substantively unreasonable. See 

.




        4
        Johnson’s argument that the district court erred in considering punishment as a factor in
imposing his sentence is foreclosed by United States v. Lewis, 

, 399-400 (6th Cir.
2007). In Lewis, a panel of this court concluded that “it does not constitute reversible error to
consider § 3553(a)(2)(A) [punishment] when imposing a sentence for violation of supervised release,
even though this factor is not enumerated in § 3583(e).”

                                                   16
                                     III. CONCLUSION

       For the reasons explained above, we AFFIRM the district court’s denial of Johnson’s motion

to dismiss, the denial of his motion to review his USPO file, and the revocation of Johnson’s

supervised release. Because of the procedural error in Johnson’s sentencing we VACATE his

sentence and REMAND for resentencing. We encourage the district court to proceed expeditiously

because Johnson’s twenty-month term of imprisonment will soon conclude.




                                               17