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The Honorable A. Wallace Tashima, United States Circuit Judge for the Ninth

Circuit, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1217

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United States of America, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Kelly Foster, *

*

Appellee. *

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Submitted: November 16, 2007

Filed: January 31, 2008

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Before RILEY, TASHIMA,1

 and SMITH, Circuit Judges. 

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RILEY, Circuit Judge.

Under a plea agreement, Kelly Foster (Foster) pled guilty to knowingly and

intentionally possessing pseudoephedrine, knowing the pseudoephedrine would be

used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(1). The

district court sentenced Foster to 60 months’ imprisonment, but immediately

suspended the sentence and placed Foster on five years’ probation. The government

appeals the sentence. For the reasons stated below, we vacate Foster’s sentence and

remand the case to the district court for resentencing.
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I. BACKGROUND

Neither party challenges the facts leading to Foster’s guilty plea, and although

they take issue as to whether Foster’s criminal history category should be either I or

II, the real disputed issues are whether Foster’s sentence is legal and reasonable.

Thus, we briefly state the relevant facts.

Foster pled guilty to one count of knowingly and intentionally possessing

pseudoephedrine knowing it would be used to manufacture methamphetamine. The

presentence investigation report indicated Foster’s total offense level was 27 with a

criminal history category II. Foster’s advisory Guidelines range was 78 to 97 months’

imprisonment.

As part of his plea agreement, Foster reserved the right “to request a departure

[to criminal history category I] based on over-represented criminal history.” At

sentencing, Foster requested a downward departure of one level on his criminal

history category. The government objected to Foster’s request. Indicating Foster’s

criminal history category was overstated, the district court overruled the government’s

objection and sentenced Foster to 60 months’ imprisonment. The district court then

suspended Foster’s sentence and placed him on probation for five years. The

government appeals, arguing Foster’s sentence is illegal and unreasonable.

II. DISCUSSION

We review de novo the district court’s interpretation and application of the

Guidelines, United States v. Peterson, 455 F.3d 834, 837 (8th Cir. 2006), as well as

any other issues of law. United States v. Bahena, 223 F.3d 797, 804 (8th Cir. 2000).

However, we review for clear error the district court’s factual findings. Peterson, 455

F.3d at 837.

“[A] district court should begin all sentencing proceedings by correctly

calculating the applicable Guidelines range. . . . [T]he Guidelines should be the
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starting point and the initial benchmark.” Gall v. United States, __ U.S. __, 2007 WL

4292116 at *7 (2007). “[A]fter giving both parties an opportunity to argue for

whatever sentence they deem appropriate, the district judge should then consider all

of the § 3553(a) factors to determine whether they support the sentence requested by

a party. In so doing, he may not presume that the Guidelines range is reasonable. . . .

He must make an individualized assessment based on the facts presented.” Id.

(footnote omitted).

“If [the district judge] decides that an outside-Guidelines sentence is warranted,

he must consider the extent of the deviation and ensure that the justification is

sufficiently compelling to support the degree of the variance.” Id. “[A] major

departure should be supported by a more significant justification than a minor one.”

Id.

On appeal, “[r]egardless of whether the sentence imposed is inside or outside

the Guidelines range, the appellate court must review the sentence under an abuse-ofdiscretion standard.” Id. “[The appellate court] must first ensure that the district court

committed no significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence—including an explanation for any

deviation from the Guidelines range.” Id. “Assuming that the district court’s

sentencing decision is procedurally sound, the appellate court should then consider the

substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard.” Id. 

With these precepts in mind, we find the district court’s imposition of a

suspended sentence constitutes an illegal sentence. We recently declared it is error for

the district court to suspend a “sentence in the absence of the statutory authority to do

so.” United States v. Ross, 487 F.3d 1120, 1124 (8th Cir. 2007). In Ross, the district
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court sentenced the defendant to a term of imprisonment and then suspended part of

that sentence. Id. In remanding Ross for resentencing, we noted the authority to

suspend federal sentences has been abolished. Id. Because the district court was not

authorized to suspend Foster’s sentence, the district court’s sentence is illegal.

Foster acknowledges the district court erred, but contends the sentence is legal

because the district court’s written judgment does not mention his sentence was

suspended. We cannot disregard the district court’s legal error because, at sentencing,

the district judge expressly stated:

The court is sentencing you to 60 months based upon your overstated

criminal history . . . . The court is going to suspend the imposition of this

five-year sentence and place you on five years probation.

This sentence, as acknowledged by both parties, violates 18 U.S.C. § 3561(a)(3),

which provides “[a] defendant who has been found guilty of an offense may be

sentenced to a term of probation unless . . . (3) the defendant is sentenced at the same

time to a term of imprisonment for the same or a different offense that is not a petty

offense.” It is true that the district court’s subsequent written judgment provides that

“[t]he defendant is hereby sentenced to probation for a term of 5 years.” Even

assuming, as defendant does, that this would be a “legal” sentence, it cannot control

over the oral pronouncement of sentence. “Where an oral sentence and the written

judgment conflict, the oral sentence controls.” United States v. Glass, 720 F.2d 21,

22 n.2 (8th Cir. 1983) (citing Johnson v. Mabry, 602 F.2d 167, 170 (8th Cir. 1979));

see also United States v. Tramp, 30 F.3d 1035, 1037 (8th Cir. 1994) (“The oral

pronouncement by the sentencing court is the judgment of the court.”). Thus, the

district court’s later written judgment does not remedy its plainly illegal sentence. 

Because Foster needs to be resentenced, we will not review the reasonableness

of his sentence at this time. We do emphasize, however, that “[a]fter settling on the

appropriate sentence, [a district judge] must adequately explain the chosen sentence
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to allow for meaningful appellate review and to promote the perception of fair

sentencing.” Gall, __ U.S. __, 2007 WL 4292116 at *7. The district judge “must

explain his conclusion that an unusually lenient or an unusually harsh sentence is

appropriate in a particular case with sufficient justifications.” Id. at *6.

III. CONCLUSION

Based on the foregoing, we vacate Foster’s sentence and remand for

resentencing consistent with this opinion.

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