Sentencing; Procedural reasonableness; Whether the failure to calculate a defendant’s sentence under the Guidelines constituted “procedural error”; Whether the district court’s “Statement of Reasons” satisfied procedural safeguards; Whether the failure to calculate the Guidelines was harmless error if the district court would have imposed the same sentence under the Guidelines; Whether inclusion of the quantity of meth a codefendant sold before the age of 18 in calculating his offense level constituted a procedural error; United States v Gibbs; United States v Hough; Blakely v Washington; United States v Booker; Substantive reasonableness

[This appeal was from the WD-MI.] The court affirmed defendant-Deonte Gates’s sentence, holding that the district court did not err in including his pre-age 18 drug quantities sold in calculating his Guideline range. But it vacated defendant-Trevon Gates’s sentence and remanded for resentencing, holding that the district court’s failure to calculate his sentence under the Guidelines constituted procedural error. Trevon appealed his 72-month sentence for possession of a firearm in furtherance of a drug trafficking crime. Probation calculated his Guideline as the mandatory minimum 60 months. The district court cited his recent state-court conviction for a similar crime, and concluded the mandatory minimum was “inadequate.” The court found that the “sentencing transcript overwhelmingly” supported that the district court failed to openly address the Guidelines as to his firearm offense. The government contended the Statement of Reasons the district court filed after sentencing showed it had “satisfied its procedural duty.” The court first noted that such statements serve “a record-keeping function for the U.S. Sentencing Commission” and are not meant to be “‘a procedural safeguard for any particular defendant.’” The one in this case provided no clarification as to whether the district court in fact calculated Trevon’s Guidelines or whether it used the mandatory minimum. “In fact, the Statement of Reasons, itself, suggests the district court did not rely on the” Guidelines. The court rejected the government’s argument that “mentioning the mandatory minimum sentence was sufficient to constitute addressing the Sentencing Guidelines because they were both 60 months . . . .” It also rejected the position that the failure to calculate Trevon’s Guideline was harmless error because the same sentence would have been imposed under the Guidelines, noting the lack of precedent on a sentencing court’s complete failure to address the Guidelines. Further, the government “failed to meet its burden of proving ‘with certainty’ that the district court would impose the same sentence notwithstanding the procedural error.” It court concluded the district court’s justification “for its upward ‘variance’ does not necessarily justify an upward departure.” Deonte appealed his 110-month sentence for possession with intent to distribute meth, challenging the inclusion of the quantity of meth he sold before reaching the age of 18 in calculating his offense level. The court noted it rejected this argument in Gibbs and Hough. It also rejected his substantive reasonableness challenge. Remanded for Trevon’s resentencing.