On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 02-cr-00358) District Judge: Honorable William H. Yohn, Jr.
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Before: SLOVITER, AMBRO and MICHEL,*fn1 Circuit Judges.
If the procedural requirements for sentencing defendants that this court established are so inflexible that we cannot affirm any sentence when the district court fails to articulate its analysis in precisely the terms of those requirements, then we must vacate the sentence imposed in this case no matter how reasonable we believe it is. Under the circumstances of this case, we will not vacate the sentence imposed by the District Court. Instead, we affirm, but write to dispel any erroneous impression that we have relaxed those requirements. We proceed to explain our disposition.
Defendant Donald James King appeals his sentence of seventy-two months imprisonment that was imposed by the District Court following his plea of guilty to one count of bank fraud in violation of 18 U.S.C. § 1344, and one count of use of a false social security number in violation of 42 U.S.C. § 408(a)(7)(B). King claims that the sentence is unreasonable and in violation of United States v. Booker, 543 U.S. 220 (2005), because the District Court did not follow proper procedure for imposing a sentence in excess of the range recommended by the Sentencing Guidelines (30--37 months imprisonment).*fn2
The events giving rise to this criminal prosecution took place during the years 1998 and 1999. Appellant King is a sixty-seven year old male who engaged in what is commonly known as "identity theft"- unauthorized use of the personal information of another person for the purpose of securing loans, obtaining credit cards, and financing purchases. In carrying out this crime, King used the social security number and date of birth of another man with the same name (hereafter "Victim"). In his plea colloquy, King admitted to employing these means to engage in a laundry list of transactions, including a mortgage on his primary residence, several consumer lines of credit and credit cards resulting in defaults totaling over $14,000, and loans for the purchase of expensive consumer items, such as a home entertainment system and luxury cars.*fn3 Some of these vehicles, which included a Mercedes, a BMW, and a Lexus, were repossessed and resold, but some were never recovered. King admitted that his activities caused losses to financial institutions of $166,000.
On September 26, 2002, King pled guilty to bank fraud in violation of 18 U.S.C. § 1344, which carries a maximum sentence of thirty years imprisonment, and use of a false social security number in violation of 42 U.S.C. § 408(a), which carries a statutory maximum of five years. King failed to appear for his initial sentencing hearing on November 18, 2003. He was arrested on a bench warrant on March 16, 2004, after attempting to refinance one of the loans at issue in this prosecution.
Purchase of a 1995 BMW 325i for $20,700 on which King made no payments, resulting in repossession and resale with a $10,373 loss to Harris Savings Bank, which extended the loan.
Purchase of a 1996 Chevy Tahoe for $26,000 on which King made no payments. Harris Savings Bank lost the full amount of the loan as it was unable to recover the vehicle for resale.
Defaulting on a line of credit resulting in a $1,200 loss to Northwest Financial.
Defaulting on a credit card resulting in a loss of $1,670 to Providian Financial.
Purchase of a 1993 Lexus GS-300 for $19,046 on which King made no payments. WFS Financial lost the full amount of the loan as it was unable to repossess and resell the car.
Purchase of a 1992 Infinity for $12,059 on which King made no payments, resulting in repossession and resale with a $1,980 loss to WFS Financial, which extended the loan.
King was sentenced on February 25, 2005. The Booker decision was announced approximately six weeks before King's sentencing hearing. The District Court started by calculating the applicable range under the Sentencing Guidelines.*fn4 It adopted the Presentence Report ("PSR") and the stipulation of the parties that the amount of loss for sentencing purposes was $166,000, which corresponded to a base offense level of six. U.S.S.G. § 2F1.1. A seven-level increase was applied because the loss exceeded $120,000, and a two-level increase was applied because the offense involved more than minimal planning. See U.S.S.G. § 2F1.1(b)(2)(A). Another two-level increase was applied for obstruction of justice due to King's absconding before his sentencing hearing. U.S.S.G. § 3C1.1. King's offense level was accordingly seventeen, while his criminal history category was III, leading to an applicable Guidelines range of 30--37 months imprisonment.
The Government moved for a five-level upward departure in offense level based on severe non-economic harm to the Victim. U.S.S.G. § 2F1.1 cmt. 11. The District Court declined to consider this evidence strictly within the framework of the Guidelines, stating that it would instead take the Government's argument and evidence into account when determining the ultimate sentence under 18 U.S.C. § 3553(a). In response to the Government's motion for a five-level upward departure, the District Court stated:
I guess my feeling is I really hadn't thought much about this, anything about this issue until this morning when I received defendant's sentencing memorandum. And I'm not sure that motions for ...