Tenth Circuit on post-Booker sentencing and harmless error

A split Tenth Circuit panel issued an interesting set of opinions in US v. Arrevalo-Olvera, No. 06-2291 (10th Cir. July, 31, 2007) (available here).  The majority finds that the district court erred in its approach to post-Booker sentencing, but then holds that the error was harmless because the district court imposed a sentence above the bottom of the applicable guideline range.  The dissent, which sees the harmless error issue differently, begins this way:

I join that portion of the majority opinion holding that the district court erred by refusing to consider Arrevalo-Olvera’s request for a variance below the applicable Guideline range until the district court satisfied itself that a sentence within the range would be unreasonable.  However, because we should not guess a defendant into a particular sentence when “[t]here is no concrete indication the district court would impose the same sentence on remand . . .,” United States v. Nickl, 427 F.3d 1286, 1302 (10th Cir. 2005) (Murphy, J.), I respectfully dissent.  I would reverse the district court’s decision and remand for resentencing.