United States Court of Appeals 

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 9, 2005

 Decided April 4, 2006

Before

 Hon. RICHARD D. CUDAHY, Circuit Judge

 Hon. JOHN L. COFFEY, Circuit Judge

 Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 05-2526

UNITED STATES OF AMERICA, )

) Appeal from the United States

Plaintiff-Appellee, ) District Court for the Northern

 ) District of Indiana, Fort Wayne

) Division

v. )

) No. 02 CR 71-2

COREY A. SMITH, )

) William C. Lee, Judge.

Defendant-Appellant. )

O R D E R

This case returns to us following re-sentencing of defendant Corey Smith in

the wake of the Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296,

124 S. Ct. 2531 (2004), and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005). See United States v. Smith, 393 F.3d 717, 720 (7th Cir. 2004). The district

judge on remand re-sentenced Smith to the same prison term it had originally

imposed, recognizing that it now had discretion to impose a sentence outside of the

advisory Guidelines range. R. 101; R. 106 at 5-6. Smith again appealed, but his

counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-2526 Page 2

1

 The court invited Smith to file a response to his counsel’s Anders brief, but

Smith did not do so.

(1967), contending that no non-frivolous grounds for appeal remain at this point.1

On October 7, 2005, we issued an order directing Smith’s counsel to address

two issues that we identified as potentially meritorious: (1) whether the district

complied with its obligation to consider the sentencing factors set forth in 18 U.S.C.

§ 3553(a), see Booker, 543 U.S. at 259-60, 125 S. Ct. at 764-65; United States v.

Dean, 414 F.3d 725, 728 (7th Cir. 2005), given that the court did not mention

section 3553(a) or the factors set forth therein when it re-sentenced Smith; and (2)

whether Smith’s sentence is reasonable, see Booker, 543 U.S. at 260-61, 125 S. Ct.

at 765; United States v. Paladino, 401 F.3d 471, 484 (7th Cir. 2005), cert. denied,

126 S. Ct. 106 (2005), and cert. denied, 126 S. Ct. 1343 (2006). We asked Smith’s

attorney either to brief the merits of these issues or, in the alternative, to file a

supplemental Anders brief explaining why he believes that no non-frivolous

argument can be made as to either issue.

Concluding that Smith cannot make a non-frivolous argument on either of

the two issues we raised, Smith’s counsel has filed a supplemental Anders brief

setting out the rationale that has led him to this conclusion. With respect to the

section 3553(a) sentencing factors, Smith’s counsel points out that when it resentenced Smith, the court referred to and incorporated the reasons it had given

for imposing the same sentence at Smith’s first sentencing hearing. R. 106 at 6. 

Those reasons, although they were not articulated with express reference to section

3553(a), were consistent with the types of sentencing factors set forth in section

3553(a). As for the reasonableness of the sentence, Smith’s counsel observes that

because it falls within the advisory Guidelines range, it is presumptively

reasonable. Counsel represents that he knows of no circumstance that would rebut

this presumption.

Having reviewed the record, we agree that Smith is unable to make a nonfrivolous argument that his sentence is invalid because the district court did not

expressly cite and consider the section 3553(a) sentencing factors in re-sentencing

Smith. We have previously stated that a district court is not obliged to discuss

those factors exhaustively, United States v. George, 403 F.3d 470, 472-73 (7th Cir.),

cert. denied, 126 S. Ct. 636 (2005), or even to cite section 3553(a), United States v.

Laufle, 433 F.3d 981, 987-88 (7th Cir. 2006), so long as the record assures us that

the court gave meaningful consideration to the types of sentencing factors that the

statute identifies, id. at 987 (citing United States v. Williams, 425 F.3d 478, 480

(7th Cir. 2005), cert. denied, 126 S. Ct. 1182 (2006)); see also United States v.
No. 05-2526 Page 3

Cunningham, 429 F.3d 673, 676 (7th Cir. 2005). In this case, the court’s remarks

on re-sentencing Smith were quite brief; as we noted in our October 7, 2005 order,

the court treated the proceeding more as a remand pursuant to Paladino, 401 F.3d

at 483-84, than as a de novo re-sentencing. See R. 106 at 4-6. No doubt, the brevity

of the court’s rationale for imposing the same sentence is due in large part to the

fact that the parties themselves made only abbreviated arguments on remand: the

government contended that the court should impose the same sentence for the same

reasons it had originally, while Smith contended that a lesser sentence was

warranted given that the judge’s finding on obstruction of justice had increased the

Guidelines sentencing range. The court considered and rejected the latter

argument, and otherwise noted that it believed the same sentence was warranted

for the same reasons that it had articulated at the original sentencing. R. 106 at 6. 

As Smith’s counsel points out, the findings set forth in the detailed pre-sentencing

memorandum that the court issued in advance of the original sentencing (resolving

Smith’s objections to the probation officer’s pre-sentence report) track a number of

the sentencing factors set forth in section 3553(a). For example, the court not only

found that Smith had intentionally lied during his trial testimony, but it also

rejected Smith’s contention that a Criminal History Category of II was

inappropriately high along with Smith’s contention that a downward departure was

warranted based on his adverse home environment while he was a child, his prior

drug use, and his educational background. R. 81. In resolving these issues, the

court was necessarily taking into account such factors as the history and

characteristics of the defendant, the gravity of his criminal conduct, the need to

promote respect for the law and to provide just punishment for the offense, and

avoid unwarranted sentencing disparities among similarly-situated defendants. 

See § 3553(a) (1), (2), and (6). On the other hand, now that Booker has rendered the

Sentencing Guidelines advisory, these statutory sentencing factors have become

more important, see Dean, 414 F.3d at 728, and district judges have much more

leeway than they did prior to Booker to rely on these broad criteria in fashioning an

appropriate sentence. Arguably, then, the district court’s implicit consideration of

these criteria at the original sentencing did not relieve the court of the obligation to

weigh the statutory sentencing factors anew on re-sentencing.

Yet, even if we assume that the court should have given the section 3553(a)

factors more attention, we can discern no potentially meritorious basis for

contending that Smith was harmed by the omission. First, the court understood

that in the wake of Booker and pursuant to this court’s remand, it had the authority

to impose a different sentence than the one originally imposed, including one

outside of the now-advisory Guidelines. The court considered that possibility and,

based on the totality of the circumstances, concluded that a different sentence was

not warranted. Second, the court gave the parties the opportunity on re-sentencing

to identify any factors that supported a sentence within or without the Guidelines
No. 05-2526 Page 4

range. Third, as we have noted, Smith argued only one circumstance – the

obstruction of justice enhancement, based on the judge’s finding that Smith had

perjured himself at trial – that in Smith’s view warranted a sentence below the

Guidelines range. The court considered that circumstance and concluded that it did

not justify a different sentence. Fourth, as we discuss below in regard to the

reasonableness of the sentence, nothing in the record stands out as a circumstance

so unusual in kind or degree as to demand a sentence below the Guidelines range. 

Under these circumstances, the court’s omission to expressly consider the section

3553(a) factors in re-sentencing Smith was harmless.

 Having reviewed the record, we further conclude that no arguably

meritorious argument can be made that Smith’s re-imposed sentence is

unreasonable. Because it is within the range recommended by the Sentencing

Guidelines, the sentence is presumptively reasonable, and Smith would bear the

burden of rebutting that presumption. United States v. Mykytiuk, 415 F.3d 606, 608

(7th Cir. 2005).

The sole ground that Smith has preserved as a basis for contending that the

sentence is unreasonable is the obstruction of justice enhancement pursuant to

section 3C1.1 of the Guidelines. Smith emphasized below that the enhancement

was based on a judicial rather than a jury determination that he had given false

testimony at trial. However, the Supreme Court’s decision in Booker solved the

Sixth Amendment problem presented by such enhancements not by requiring jury

findings as to the underlying facts but rather by severing and excising the statutory

provision compelling courts to follow the Sentencing Guidelines. See Booker, 543

U.S. at 258-59, 125 S. Ct. at 764. District courts remain obliged to consult the

Guidelines in arriving at an appropriate sentence, and for that purpose they must

apply the relevant Guidelines provisions and make the necessary factual

determinations just as they did before Booker. See, e.g., United States v. Della Rose,

435 F.3d 735, 738 (7th Cir. 2006). Thus, the fact that the obstruction enhancement

was based on a factual determination by the judge rather than the jury is neither

here nor there vis-à-vis the reasonableness of the sentence. Smith went on to

suggest below that the increase in his offense level and the resulting sentencing

range triggered by the enhancement was out of proportion to the conduct on which

the court had based the enhancement. But the district court reasonably rejected

that suggestion, noting that Smith had not simply denied his guilt when he took the

witness stand at trial, but had given testimony rife with “misinformation and

obfuscation”. R. 106 at 6. In short, the obstruction enhancement and the resulting

increase in Smith’s offense level and sentencing range does not call into question

the reasonableness of his sentence.

Any other basis for challenging the reasonableness of the sentence was not
No. 05-2526 Page 5

argued below, and we would assess such a ground pursuant to a plain-error

standard. E.g., United States v. Hawk, 434 F.3d 959, 961-62 (7th Cir. 2006). 

Having independently reviewed the record, we have found no other circumstance so

compelling that it might be thought to rebut the presumptive reasonableness of

Smith’s Guidelines sentence. Smith was sentenced based on his participation in the

sale of 25.47 grams of crack cocaine to an undercover police detective. Although it

was co-defendant Alonzo Grant who negotiated the transaction with the detective,

Smith was, as the district court noted, “clearly right at the heart of the transaction.” 

R. 81 at 12 n.8. The Guidelines sentencing range in this case was based on the

amount of crack cocaine involved in this transaction alone, so there can be no

argument that relevant drug quantity was disproportionate to the offense of

conviction or Smith’s involvement in that offense. According to the probation

officer’s pre-sentence report, Smith reports having dropped out of school in the

ninth grade and having begun to use drugs at the age of 15. He was raised by his

mother alone (he saw his father only occasionally), but he described his upbringing

as “good.” R. 82 at 13 ¶ 82. Although Smith’s background can hardly be described

as ideal, the record discloses nothing so extraordinary as to suggest that reason

demands a sentence outside of the Guidelines range.

For these reasons, finding that there is no non-frivolous ground on which

Smith could challenge his sentence at this juncture, we GRANT his counsel’s

motion to withdraw and summarily AFFIRM his sentence as a reasonable one.