Notable split decision from Eigth Circuit on harmless error sentencing review

The Eight Circuit has an interesting and thoughtful discussion of sentencing review today in its split decision in US v. Henson, No. 07-1993 (Nov. 24, 2008) (available here).  This final paragraph of the dissent by Judge Shepard provides an effective summary of what gets debated in the opinion:

In sum, absent significant procedural error, the sentencing explanation given by the district court in this case might be sufficient.  However, the district court committed the significant procedural error of presuming Henson’s Guidelines range to be reasonable, burdening the government with demonstrating the error’s harmlessness, i.e., that the district court did not rest Henson’s very-bottom-of-the- Guidelines-range sentence on the presumption . The majority agrees but finds that the government made the requisite showing by pointing to the district court’s apparent attempt to innoculate Henson’s sentence from reversal by stating that, even without the presumption, it would impose an identical sentence. In my view, more explanation is required to remove the taint of the district court’s significant procedural error.  Because I find the district court’s bare statement insufficient to demonstrate harmlessness, I would vacate Henson’s sentence and remand for resentencing.