Still more Booker from the Sixth Circuit

We can always count on the Sixth Circuit to get our sentencing day off and running.  This morning the Circuit released its unpublished decision in US v. Howard, No. 03-1786 (6th Cir. Mar. 4, 2005) (available here), which includes some interesting  Booker issues.

Howard is perhaps most interesting because of the absence of any harmless error analysis.  In Howard, two defendants challenged sentences based on judicial fact-finding for guideline enhancements, and the Sixth Circuit remands for resentencing on Booker grounds.  Without considering harmless error issues, the Howard court simply concludes that remands are appropriate because the defendants "received, under a mandatory regime, a sentence above the maximum sentence [they] could have received based solely on the jury verdict or [their] own admissions."

In addition, the government in Howard cross-appealed to challenge the "district court's decision to grant [a third defendant] a 12-month downward departure for time served on a state conviction."  The Sixth Circuit in Howard decides that the downward departure was improper and concludes it must vacate and remand "for re-sentencing without benefit of the 12-month departure, and without treating the correct guideline range as mandatory." 

This result on the government cross-appeal has me a bit puzzled post-Booker, since I think the Sixth Circuit could have (perhaps should have) considered affirming the third defendant's sentence based on a form of harmless error analysis, despite its conclusion that the downward departure was improper.  A district judge is never obliged to downward depart; such a decision always involves an exercise of a district court's discretion.  Thus, the real impact of the district court's (apparently erroneous) conclusion that there was authority to depart essentially put the district judge into a "Booker-like" world in which the calculated guideline range had to be considered, but not followed. 

If some defendants are going to have to establish post-Booker that the pre-Booker result would now be different to secure resentencing, shouldn't the government bear that same burden when it is appealing a pre-Booker sentence?