USA v. William Ross III, 07-1215.  William Ross challenges his 78-month sentence for his role in a conspiracy to possess and distribute cocaine and marijuana. See 21 U.S.C. §§ 846, 841(a)(1). Because it appears from the record that the district court improperly applied a presumption of reasonableness for a within-guidelines sentence, we vacate the sentence and remand for resentencing.

Ross, along with 16 co-defendants, was indicted for a drug conspiracy that began in 1995 and lasted until 2003. Two days before trial he pleaded guilty to the conspiracy charge (a second count was dropped, although the parties insist that there was no bargain).

At the change-of-plea hearing, the district court explained to Ross that it would apply the guidelines to his case and calculate "a range of months within which I am supposed to sentence you." The court added: "I do have the power to give you a different sentence, but I need some kind of good reason to do it. Otherwise I have to give you the guideline sentence."

At sentencing the parties agreed that Ross’s truthfulness during this safety-valve interview made him eligible for a sentence below the statutory minimum. They also agreed that the appropriate guidelines imprisonment range was 78 to 97 months.

Ross argued that the district court should sentence him below this range based on his disclosures to the government and his short-lived involvement in the drug conspiracy.

When announcing the sentence, the district court noted that it could not see "any reason why the guideline sentence isn’t appropriate in this case."

On appeal Ross argues that the district court erroneously deemed the guidelines to be binding. According to Ross, the court thought it could not impose a sentence below the guidelines imprisonment range even after concluding that a lower sentence would be more appropriate. In our view, however, Ross’s characterization of the district court’s position goes too far.

The guidelines of course still "serve as a necessary starting point" in the sentencing court’s deliberations, but they are advisory, not mandatory. United States v. Jointer, 457 F.3d 682, 686 (7th Cir. 2006). We are confident, then, that the district court recognized its discretion to select a sentence-within or outside the guidelines range-in light of the factors set forth in 18 U.S.C. § 3553(a). See United States v. Ngatia, 477 F.3d 496, 501 (7th Cir. 2007).  Indeed, contrary to Ross’s contention, the district court explicitly acknowledged its power to impose a sentence outside the guidelines range.

But Ross’s argument points to a more subtle error. He suggests that the district court, in settling on 78 months, erroneously presumed that a within-guidelines sentence was appropriate instead of a fashioning a sentence with reference to the § 3553(a) factors. 

The Supreme Court has now answered the question definitively, holding in Rita v. United States, 127 S.Ct. 2456, 2465 (2007), that the presumption of reasonableness applicable when reviewing a within-guidelines sentence on appeal does not carry over to the choice of sentence by the district court.

Although the sentencing court’s language is ambiguous, we are constrained to conclude that the court applied a presumption that Ross should be sentenced within the guidelines range. 

In the end, despite the apparent weighing of § 3553(a) factors, the district court nevertheless told Ross that it could not sentence him below the guidelines range unless he "presented some kind of good reason" to do so.

As such, the district court was wrong to conclude that the "lowest sentence possible" was the bottom of the guidelines range; if it legitimately concluded that Ross’s personal characteristics warranted something lower, it was free to sentence Ross below the guidelines range. See 18 U.S.C. § 3553(a)(1).

Accordingly, we VACATE the sentence and REMAND for resentencing.

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

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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