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USA v. Demetris Simmons, 06-3894.  Demetris Simmons was convicted following a jury trial of dealing in firearms without a license and sentenced to 56 months’ imprisonment. Simmons appealed the calculation of his sentence under the United States Sentencing Guidelines.

In this appeal, Simmons argues that the district court miscalculated his advisory guideline range, and as a result unreasonably sentenced him beyond the upper end of his actual advisory guideline range.

To start, the Seventh Circuit States that they review the district court’s calculation of an advisory guideline range de novo and its factual findings for clear error. United States v. Baldwin, 414 F.3d 791, 798 (7th Cir. 2005). Sentences that are outside of the advisory guideline range are “measured for reasonableness based on their conformity with the sentencing factors of § 3553(a).” United States v. Robinson, 435 F.3d 699, 701 (7th Cir. 2006). While the justification must be greater the farther the sentence is outside of the advisory guideline range, United States v. Rinaldi, 461 F.3d 922, 930 (7th Cir. 2006), “[i]t is hard to conceive of below- range sentences that would be unreasonably high,” United States v. George, 403 F.3d 470, 473 (7th Cir. 2005).

We next turn to whether the district court’s sentence of 51 months of imprisonment was reasonable.

First, we must point out that the district court should not have granted Simmons’ motion for a “downward departure” from criminal history category IV to III.

“The proper procedure under Booker, as we have explained in a number of cases, is for the sentencing judge first to compute the guidelines range and then to apply the sentencing factors in 18 U.S.C. § 3553(a) in order to decide whether the sentence should be inside or outside the range.” United States v. Spano, 476 F.3d 476, 480 (7th Cir. 2007).  As Spano stated:

“Departures create new guidelines ranges and thus deflect the sentencing judge from consideration of the statutory sentencing factors. For having exercised discretion to make the departure and find a new range, he is unlikely to think a further exercise of discretion necessary before he can be confident that a sentence within the new range is the proper sentence. But it is necessary, because he has to apply the statutory sentencing factors if he is asked to do so by a party.”

Departures were an essential safety hatch in the pre-Booker world because the guidelines were mandatory then, so that every sentence  had to be fitted into the guidelines scheme. With the guidelines advisory, the departure safety hatch, constrained as it was by the requirement that departures be consistent with the structure of the guidelines is a superfluous way station en route to application of the more capacious statutory sentencing factors. In short, “after Booker, which rendered the Guidelines advisory, departures have become obsolete.” United States v. Blue, 453 F.3d 948, 952 (7th Cir. 2006).

Accordingly, the district court should have stopped after it calculated Simmons’ guideline range using a total offense level of 22 and a criminal history category of IV.  The district court next should have considered the factors listed in § 3553(a) to determine whether Simmons’ sentence should fall inside or outside of the guideline range. The district court’s failure to abide by this procedure, however, was harmless error. As we have previously stated, “[i]t is hard to conceive of below-range sentences that would be unreasonably high.”

For the foregoing reasons, Simmons’ sentence is AFFIRMED.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit