United States v. Butler

MEMORANDUM **

Marvin Butler (“Butler”) appeals his sentence following remand for a full resentencing under United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). We affirm in part, reverse in part, and remand for resentencing.

Under the 1995 version of the Sentencing Guidelines applicable to Butler, the district court erred in concluding it could not consider Butler’s post-sentence rehabilitation as a basis for downward departure. United States v. Green, 152 F.3d 1202, 1207 (9th Cir.1998). Although in many instances such an error would be immaterial in a post-Booker world, 1 we cannot conclude the error was harmless in this case. While indicating a general *618 awareness it could sentence outside the Guidelines after Booker , the district court expressly indicated that it did not take into consideration Butler’s successful participation in various Bureau of Prisons programs, and that if consideration of those post-sentencing factors was appropriate, “this Court would find defendant should be given credit for that under the guideline structure and would be a basis for departure.”

The district court did not err by refusing to group the fraud and money…