UNITED STATES of America, Plaintiff-Appellee, v. Janell CAGE, Defendant-Appellant, 458 F.3d 537

BATCHELDER, J., delivered the opinion of the court, in which McKEAGUE, J., joined. CLAY, J. (pp. 544-49), delivered a separate dissenting opinion. OPINION ALICE M. BATCHELDER, Circuit Judge. On November 25, 2003, a federal grand jury charged defendant-appellant, Janell Cage (“Cage”), with knowingly and with intent to defraud possessing fifteen access devices in violation of 18 U.S.C. § 1029(a)(2) and 18 U.S.C. § 3147(1). Cage pleaded guilty to Counts 1 and 2, and the district court sentenced her to 37 months in prison followed by two years of supervised release.

At the sentencing hearing the court stated that a sentence that falls within the Guidelines range enjoys a presumption of reasonableness. The court sentenced Cage at the bottom of the recommended range. Cage filed this timely appeal challenging the district court’s method of sentencing and the reasonableness of her sentence under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the following reasons, we AFFIRM the district court’s determination. I. Janell Cage has a history of engaging in credit card and access device fraud.

From December 2002 through May 2003, Cage used her position as a medical transcriptionist to access confidential information and fraudulently open new credit accounts. She submitted over 30 credit applications, withdrew cash advances, and purchased and insured motor vehicles. Cage admitted using her employment to obtain patients’ names, dates of birth, and Social Security numbers that she then used to open and take over credit card accounts. Her victims’ total losses from her conduct exceeded $132,000. Cage was indicted on June 30, 2003, on several fraud counts.

She pleaded guilty to one count of access device fraud in violation of 18 U.S.C. § 1029(a)(2), and was sentenced to 30 months in prison, followed by three years of supervised release. See United States v. Janell Cage, 134 Fed.Appx. 833, 834 (6th Cir.2005). She appealed, and on May 13, 2005, her case was remanded for resentencing consistent with Booker. Id. at 838. After she was indicted but before she was sentenced for those offenses, Cage again engaged in access device fraud.

Between August and November 2003, Cage reactivated several patient accounts to run credit reports in order to take over credit card accounts or submit fraudulent applications. She fraudulently used credit cards in the names of Nadine King and Phyllis Wilkie to purchase merchandise in excess of $28,000, and used another patient’s name to submit additional loan applications. A search of Cage’s residence pursuant to a search warrant revealed more evidence of access device fraud and purchases made with fraudulent accounts. The total loss attributable to her conduct was $108,126.67.

On November 25, 2003, Cage was indicted for violating 18 U.S.C. § 1029(a)(2) and 18 U.S.C. § 3147(1), giving rise to the instant case. On September 29, 2004, Cage pleaded guilty to Counts 1 and 2 of the indictment and, on February 1, 2005, the district court sentenced her to 37 months in prison to run concurrently with her previous 30 month sentence, followed by two years of supervised release and restitution. Cage’s sentencing hearing was held on February 1, 2005.

At the outset of the hearing, the district court recognized “that we are proceeding under the new regime, the post-Booker regime” whereby sentencing is discretionary and the court is obligated to “consider[ ] the Sentencing Guidelines and the Guideline ranges before the court does anything else.” The court further stated: As a general proposition, I suspect the court will be sentencing in the Guidelines even though the sentencing Guidelines are no longer mandatory. Because one test of reasonableness is ... whether the court has considered the Guidelines.

But it does mean that the court can depart upward or downward under the same circumstances that it would have departed under the Guidelines. And it means that the court can move away from the Guidelines if the court thinks that that’s necessary to impose a reasonable sentence. The court explained that in light of Booker it could impose a Guidelines sentence, apply Guidelines standards under the exceptions provided in the Guidelines, or impose a non-Guidelines sentence. The district court indicated that any departure from the Guidelines would be pursuant to the factors prescribed in 18 U.S.C. § 3553(a).

Cage did not object to the underlying facts set forth in the pre-sentence report and, based on those facts, the district court properly calculated Cage’s sentence under the Guidelines, finding that Cage’s total offense level was 19, her criminal history category was 3, and the resulting Sentencing Guidelines range was 37 to 46 months. Cage requested a non-Guidelines sentence, asking the court for a downward departure in consideration of her young children and family situation.

The court acknowledged the presence of Cage’s parents and small children, and heard testimony about the present family situation from Cage’s husband. Nevertheless, the court declined to depart from the Guidelines. After noting the tragedy of Cage’s family situation, the court observed that such tragedy is a regular consequence of criminal conduct, and highlighted the devastating effect that Cage’s conduct had on her victims and their families.

The court added that the seriousness of Cage’s continued criminal conduct, even after her initial arrest and prosecution, weighed against a downward departure from the Guidelines. The court explained: The first issue is whether the court should sentence in accordance with the Guidelines. And I believe the sentence under the Guidelines, considering all of the circumstances ... in this case, will be reasonable.

Under Booker, there is a presumption in favor of the Guidelines because the Guidelines express the public policy and the intention of Congress as to the court’s authority of these matters and the considerations that the court should address. And I think that ... a sentence under the Guidelines would be a reasonable sentence. The court then sentenced Cage to 37 months of incarceration at a boot camp facility, if eligible, to run concurrently with her earlier 30 month term, followed by two years of supervised release, and ordered her to pay $45,052.32 in restitution. II. After United States v.

Booker invalidated the mandatory use of the Sentencing Guidelines and declared them “effectively advisory,” the district court has been tasked with imposing “‘a sentence sufficient, but not greater than necessary to comply with the purposes’ of § 3553(a)(2).” United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006). We review such sentences for “reasonableness,” and must affirm the district court’s determination if it is reasonable. United States v. Christopher, 415 F.3d 590, 594 (6th Cir.2005).

A sentence is unreasonable if the sentencing court fails to consider the applicable Guideline range or neglects the factors articulated in 18 U.S.C. § 3553(a). See United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). Cage contends that the court applied an “erroneous method” in determining her sentence, which rendered it unreasonable under Booker.

She argues that the district court erred in affording the Sentencing Guidelines range a presumption of reasonableness when it asserted inter alia that “there is a presumption in favor of the Guidelines because the Guidelines express the public policy and intention of Congress .... ” She suggests that the court failed to integrate the § 3553 statutory factors properly as required by Booker because it mistakenly focused on what it believed would be a reasonable sentence within the Guidelines range. Cage presents the same argument raised and addressed in United States v.

Williams, 436 F.3d 706 (6th Cir.2006), and her claim is foreclosed. In Williams, we joined with several of our sister circuits in “articulating] what weight should be accorded the Guidelines relative to the other sentencing factors listed in § 3553(a).” Williams, 436 F.3d at 707-08. In that case, “the district court determined that ‘the advisory nature of the guidelines leads the court to conclude that this range of sentences ... is a reasonable range.’ Williams argues from this that the district court improperly presumed the Guidelines range to be reasonable.” Id. at 708.

Cage raises this same concern, arguing first that the district court erred in beginning with the presumption that the Guidelines are reasonable, and second, that the court failed to indicate that it was considering any of the other factors listed in § 3553(a). Here, as did the defendant in Williams, Cage suggests that because the district court presumed the Guidelines range to be reasonable, she was deprived of the proper integration of the § 3553(

a) statutory factors. Id. at 707. We are not persuaded, and we reaffirm our position in Williams “crediting sentences properly calculated under the Guidelines with a rebuttable presumption of reasonableness.” Id. at 708. Williams is controlling, and Cage’s claims lack merit. We pause to make two observations. First, in United States v. Foreman, we recently suggested in dicta that Williams’ statement regarding the Guidelines’ rebuttable presumption of reasonableness was “rather unimportant” even though it seems to “imply some sort of elevated stature to the Guidelines .... ” United States v.

Foreman, 436 F.3d 638, 644 (6th Cir.2006). Foreman observed that “Williams does not mean that a Guidelines sentence will be found reasonable in the absence of evidence in the record that the district court considered all of the relevant

section 3553(

a) factors.” Id. Lest there be some confusion on this point, we note that as Foreman properly explained, “Williams does not mean that a sentence within the Guidelines is reasonable if there is no evidence that the district court followed its statutory mandate to ‘impose a sentence sufficient, but not greater than necessary’ to comply with the purposes of sentencing in

section 3553(a)(2).” Id. Indeed, the district court must still provide sufficient evidence of its consideration of the relevant § 3553 factors to allow for a reasonable appellate review. See United States v. Kirby, 418 F.3d 621, 626 (6th Cir.2005). However, nothing in Foreman should be construed to suggest that a sentencing court errs by recognizing that this Circuit will accord a presumption of reasonableness to a sentence within the recommended Guidelines range.

We think it is important to-emphasize here that the district court’s recognition of the standard that this court will apply on appellate review is not coterminous with the district court’s exercise of independent judgment in determining a sentence. We decline to conclude that by using the term “reasonable” or by acknowledging that the appellate court will apply a rebuttable presumption of reasonableness to a sentence, the district court is itself applying that presumption.

As we have repeatedly said, the presumption is rebuttable, and we may find that it has been rebutted in a case in which the record fails to reflect that the district court considered the requisite factors in imposing sentence. We therefore do not share the view expressed in footnote 3 of the dissent that there is “very little difference between saying that a Guidelines sentence is presumptively reasonable versus per se reasonable.” A rebuttable presumption is, by definition, subject to rebuttal, while a sentence that is per se reasonable is not.

Second, although ancillary to our decision in this case, we are mindful of the ongoing discussion among the circuit courts since our decision in Williams as to whether Booker accords the Guidelines a presumption of reasonableness. See, e.g., United States v. Jimenez-Beltre, 440 F.3d 514, 518 (1st Cir.2006) (en banc) (“[a]l-though making the guidelines ‘presumptive’ or ‘per se reasonable’ does not make them mandatory, it tends in that direction .... ”); United States v.

Fernandez, 443 F.3d 19, 27 (2d Cir.2006) (“declin[ing] to establish any presumption, rebuttable or otherwise, that a Guidelines sentence is reasonable”); United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006) (observing that sentences correctly calculated under the Guidelines are “entitled to a rebuttable presumption of reasonableness on appeal”); United States v. Lewis, 436 F.3d 939, 946 (8th Cir.2006) (“[A] sentence falling within the applicable guideline range is presumptively reasonable.”). In particular, we note the recent deliberations of the Ninth Circuit and the Fourth Circuit in United States v.

Zavala, 443 F.3d 1165 (9th Cir.2006), and United States v. Johnson, 445 F.3d 339 (4th Cir.2006), respectively. In Zavala, the Ninth Circuit discussed the relative weight of the Sentencing Guidelines and the spectrum of latent meanings lurking in the word “presumption.” Zavala then rejected any attempt by the district courts to endow the Guidelines with what the court called a “mandatory rebuttable presumption.” Zavala, 443 F.3d at 1169-70.

Zavala emphasized the difference between the district court’s appropriately using the Guidelines as a “starting point,” and the court’s awarding “particular weight to the thing presumed,” and determined that “[i]f a district court presumed that the sentence should be a Guideline range sentence, it would thereby make it much more than something to be consulted and would give it much heavier weight than § 3553(

a) now does.” Id. at 1169. The Ninth Circuit thus concluded that such additional weight is improper after Booker because “[n]othing in 18 U.S.C. § 3553 ... indicates that the Guidelines are to be given any greater weight than their fellow sentencing factors.” Id. at 1171. Significantly, however, Zavala did not confront the question of “whether a reviewing court should entertain a presumption that a sentencing decision which does fall within the Guideline range is reasonable.” Id. at 1168. Moreover, the court recognized that it had “not yet opined on that question, and will not do so now.” Id. at 1169.

By contrast, we have already answered this question and credited the Guidelines with a rebuttable presumption of reasonableness. To be sure, our appellate review looks to the reasonableness of the sentence taken as a whole, while the district court must follow its mandate to “impose a sentence sufficient, but not greater than necessary” to comply with the purposes of § 3553. Foreman, 436 F.3d at 644.

However, unlike the Ninth Circuit, we have granted the Guidelines a rebuttable presumption of reasonableness in accord with Booker, and although sentencing courts must demonstrate their consideration of the relevant § 3553 factors in order to allow for a reasonable appellate review, those courts do not err in recognizing that presumption. The Fourth Circuit’s discussion in Johnson bolsters our position. Johnson reiterated the Fourth Circuit’s conclusion that “a sentence within the proper advisory Guidelines range is presumptively reasonable,” and then explored three justifications for this.

Johnson, 445 F.3d at 341. First, Guidelines sentences are presumptively reasonable in light of the extensive legislative and administrative process that birthed them. As Johnson surmises, “[i]t would be an oddity, to say the least, if a sentence imposed pursuant to this congressionally sanctioned and periodically superintended process was not presumptively reasonable.” Id. at 342. Second, and we consider this most persuasive, the Guidelines already incorporate the § 3553(

a) factors as “Congress in fact instructed the [Sentencing] Commission to take these § 3553(

a) factors into account when constructing the Guidelines.” Id. at 343. See 28 U.S.C. §§ 991(b)(1)(A), (b)(2); 994(a)(2), (b)(1), (g), (m). “[B]y devising a recommended sentencing range for every type of misconduct and every level of criminal history, the Guidelines as a whole embrace ‘the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.’ ” Id. (quoting 18 U.S.C. § 3553(a)(6)). Indeed, as Johnson elaborates: The § 3553(

a) factors are built into the Guidelines in other ways as well. The offense levels and criminal history categories squarely address “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C.A. § 3553(a)(1). The various adjustments and enhancements bear upon the need for the sentence “to reflect the seriousness of the offense ... and to provide just punishment.” Id. § 3553(a)(2)(A). And the elevated criminal history categories for repeat offenders and career criminals reflect the congressional intention “to afford adequate deterrence to criminal conduct,” id. § 3553(a)(2)(

B) and “to protect the public from further crimes of the defendant,” id. § 3553(a)(2)(C). Id. Third, Johnson considered the Guidelines sentences presumptively reasonable because “such sentences are based on individualized factfinding and this factfinding takes place in a process that invites defendants to raise objections and requires courts to resolve them.” Id.

In light of our holding in Williams, and being persuaded that even after Booker “the Guidelines are not something separate and apart from Congress’s objectives in § 3553(a),” Johnson, 445 F.3d at 343, we hold with regard to Cage that the district court did not err in viewing the Guidelines as a presumptively reasonable starting point and “considering the Sentencing Guidelines and the Guideline ranges before the court does anything else.” As we explicitly stated in Williams, “[s]uch a presumption comports with the Supreme Court’s remedial decision in Booker.” Williams, 436 F.3d at 708.

Thus, the district court’s statement that the Guidelines were presumptively reasonable does not support the claim that the court’s method of sentencing violated Booker or improperly weighed the Guidelines in relation to the other factors. This leads to Cage’s second contention. Cage argues that the district court failed to explicate its consideration of the statutory factors. This Court has made clear that in reviewing the § 3553 factors, we have “never required the ‘ritual incantation’ of the factors to affirm a sentence.” United States v. Johnson, 403 F.3d 813, 816 (6th Cir.2005).

As we have explained, “[t]he court need not recite these factors but must articulate its reasoning in deciding to impose a sentence in order to allow for reasonable appellate review.” United States v. Kirby, 418 F.3d 621, 626 (6th Cir.2005). Here, the district court acknowledged that it was proceeding under the post-Booker regime and that it must consider the advisory Guidelines range as well as the § 3553(

a) factors. The court reasoned that sentencing within the Guidelines range would be reasonable based upon its experience .with post-Booker sentencing and the circumstances of this case, but then acknowledged that it could depart from the Guidelines if necessary in order to impose a reasonable sentence. The court went on to review and consider the presentence report, the recommended Guidelines range, and Cage’s request for a downward departure from the Guidelines in light of her family’s hardship.

Ultimately, the court declined to depart from the Guidelines range after expressly commenting on the seriousness of Cage’s continuing criminal conduct even after her prior prosecution for similar fraud. The court stated that after considering all of the circumstances of the offense and the history and characteristics of the defendant, as well as adequate deterrence of criminal conduct, it had determined that the Guidelines provided a reasonable sentencing range.

Thus, here, as in Williams, the district court adequately articulated its reasoning so as to allow reasonable appellate review, and arrived at a reasonable sentence in keeping with the mandates of § 3553. A rote recitation of the statutory factors is unnecessary and the court appropriately acknowledged the statutory factors along with the Guidelines and sentenced Cage accordingly. United States v. Jones, 445 F.3d 865, 869 (6th Cir.2006) (“The district court need not explicitly reference each of the § 3553(

a) factors in its sentencing determination.”); see also United States v. Willis, 176 Fed.Appx. 653 (6th Cir.2006) (unpublished) (affirming a district court’s Guidelines sentence that used the Guidelines as a “starting point” and then discussed the statutory factors without explicitly referencing them). Finally, in reviewing the reasonableness of the court’s sentence, we note that Cage has failed to identify a single factor that might support her claim that her sentence of 37 months in prison is unreasonable under the circumstances.

Indeed, in requesting a downward departure, Cage has pointed only to her family’s hardship and the record indicates that the court fully considered the effect of Cage’s sentence on her family before lamenting that tragic consequences are often born of criminal behavior. In sum, although the district court’s discussion of the § 3553(

a) factors was not lengthy, it was adequate for an appellate review for reasonableness. CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court. . Title 18 U.S.C. 3553(

a) requires the sentencing court to consider the following factors in determining a reasonable sentence: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed- (

A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (

B) to afford adequate deterrence to criminal conduct; (

C) to protect the public from further crimes of the defendant; and (

D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for- (

A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines (5) any pertinent policy statement ... (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. . See, e.g., United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006) (per curiam); United States v. Green, 436 F.3d 449, 457 (4th Cir.2006); United States v. Mykytiuk, 415 F.3d 606 (7th Cir.2005); United States v. Lincoln, 413 F.3d 716 (8th Cir.2005).